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tP.-Svif '1.,? t:./~J Sentencing Alternatives Committee of Victoria

Second Report

PAROLE AND REMISSIONS

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Sentencing Alternatives Committee of Victoria Second Report

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PAROLE AND REMISSIONS

u.s. Department of Justice National Institute of Justice

87553

This document has been reprod d pers?n or organization originating ~fepo~~act~y .as recei~~ from the In thIs document are those Of t . In S 0 vIew or OpInions stated repr~sent the official position ~r hpeOlf~~horsf tahndNdo. not nec~ssarily Just/ce. s 0 e atlonal InstItute of

p ., g::;;~~s~; to reproduce this copyrighted material has been

Government of Victoria

to the National Criminal Justice Reference Service (NCJRS).

Further reproduction outside f th N sion of the copyright owner. 0 e CJRS system reqUires perm is-

1982

221 ' Law Department-Victoria Queen Street Melbourne 3000 Australia

If you have issues viewing or accessing this file contact us at NCJRS.gov.

1. Introduction

2. Adult Parole in Victoria

A. Legislative Framework of Parole. B. Practice gnd Procedure Regardmg

Parole C. Benefits of the Parole System D. Criticisms of the Parole System E. Questions of Procedure and Appeal F. Summary and Conclusion

3. Possible Modifications of the Victorian System

A. Eligibility for Parole B. Standard Statutory Non-parole

Periods C. Combined Effect of Parole and

Remissions D. Supervision During Parole E. Credit for Time on Parole if Parole

Cancelled F. Parole during Life 'Sentence G. Guidelines for Parole

" H. Automatic Parole on Short Sentences

4. Youth Parole and Remissions

A. Parole B. Remissions C. General

S. Summary of Conclusions and Recommendations

Schedules

1 Constitution and Proceedings of the Committee '2 Text of Legislative Pr~visi~ns Refe~rt:d to in Report 3 Analysis of Sentences In HIgher Cnmmal Courts 4 Adult Parole Board - Full Time Member

Contents

Paragraphs Pages

1 1

2.1 to 2.6 2

2.7 to 2.17 3 2.18 to 2.26 7 2.27 to 2.43 10 2.44 to 2.55 16 2.56 to 2.59 .20

3.2 to 3.5 22

3.6 to 3.9 23

3.10 to 3.15 24 3.16 to 3.25 26

3.26 to 3.30 28 3.31 to 3.45 29 3.46 to 3.53 36

3.54 to 3.59 38

4.1 to 4.14 40 4.15 to 4.22 44 4.23 to 4.24 46

5.1 to 5.28 47

53 55 60 61

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1. Introduction

1. The Sentencing Alternatives Committee was established by the Victorian Government to examine sentencing alternatives available to Courts in respect of persons not subject to the jurisdiction of Children's Courts. The full terms of reference to the committee and a short review of its proceedings are set out in Schedule One.

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2. Among the sentencing alternatives so available to Courts inVictoria are imprisonment and, where the offender is a person under the age of twenty-one years at the date of conviction, detention in a youth training centre. Such detention is also a sentencing alternative available to Children's Courts in respect of persons subject to their jurisdiction, but as it is not limited to such persons its examination falls within the terms of reference to the Committee. In respect of each of these alternatives, the law of Victoria makes provision for parole of the offender, which may shortly be defined as the release of the offender, either from prison or youth training centre (as the case may be), before the completion of the term for which he was committed, under the supervision of a parole officer and subject to such conditions as the paroling authority imposes. l We will for convenience refer to parole under each of these alternatives as, respectively, 'adult parole' and 'youth parole'.

3. Since adult parole in its present form was introduced into Victoria in 1957, it has remained a feature of the Victorian penal system. Its introduction into Victoria was followed in subsequent years by its introduction into each other Australian State and by its application to Federal prisoners, although the precise features of the scheme may have varied in the different jurisdictions in which it operated. Similar systems operate in the United Kingdom and in a number of American States.

4. Provision for parole in respect of sentences of imprisonment has in recent years been the subject of criticism.in different jurisdictions, and in its Interim Report, dated 25 January, 1980, on the Sentencing of Federal Offenders, the Australian Law Reform Commission recommended that parole for Federal prisoners should be aboliShed. This recommendation was not based solely upon defects in the system which were peculiar to the manner in which it operated for Federal prisoners. It rested very largely upon criticism which was expressed to apply to parole systems generally. In view of the important part which the p.arole system plays in Victorian penal administration, the Committee accordingly decided that it should give priority to an examination of the system in Victoria and its conclusions are contained in this Report.

5. As we have said, Victoria has provision for both adult parole and youth parole. The criticisms which the Committee will consider have in the main been directed to adult parole, but insofar as those criticisms are valid, they could also be applied to youth parole. Many of the other considerations which are relevant to one form of parole are also relevant to the other, and it is therefore appropria"te that both forms of parole should be considered in this Report. There are however significant differences in the legislation relating to each type of parole, and in some of the considetations which are relevant to each. In. order therefore to avoid unnecessary complexity, the problems of each type of parole will be dealt with separately.

1. The Committee has adopted the definition of parole, contained in the First Report of the Criminal Law and Penal Methods Reform Committee of South Australia, Chapter 2. paragraph 7.

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6. Another feature of penal law and administration in Victoria which, like parole, affects the length of time which an offender who has been sentenced to imprisonment may be required to serve in prison is the system of remissions. Remissions are granted by executive act and unless lost, actually shorten the sentence which has been imposed by the Court. In this latter respect they differ from parole which does not alter the sentence imposed but which may affect the period during which the offender is incarcerated under that sentence. The relationship between parole and remissions is however such that in the opinion of the Committee it is appropriate that they should both be considered in this Report.

7. Apart from the Interim Report of the Australian Law Reform Commission, to which we have referred, four other reports which have been officially commissioned in recent years have examined the parole system in South Australia, New South Wales and Western Australia respectively. 2 Each of these reports has been critical of some aspects of the parole system with which it was concerned. There have been a number of publications overseas, particularly in the United States of America, which have been critical of parole systems in different jurisdictions. Insofar as it has examined this material, the Committee has not, in the main, sought to evaluate the validity of any criticism made of a feature of the particular parole system with which the report was concerned. In different jurisdictions, parole principles and parole practice, both in regard to sentencing and to the decision to release on parole, may vary, and such variations may increase or diminish the importance of any criticism made of a particular feature of the parole system under consideration. We are concerned however with the parole system in Victoria and the conditions under which it operates in this State. Consequently, although consideration of reports upon systems in other jurisdictions has been helpful in forming our own opinions, we have generally refrained from analysing in this Report the arguments which have been advanced in others. In regard however to' the Interim Report of the Australian Law Reform Commission, which

. unlike the other reports to which we have referred upon Australian parole systems recommends the abolition of parole, the important part that the parole system plays in the penal administration of Victoria and the clear hope expressed in the Interim Report that State Parliam~nts will decide to abolish State parole (see paragraph 348), have persuaded us to examine in some detail the reasons advanced in the Report for that recommendation. 3

2. Adult. Parole in Victoria A. Legislative Framework of Parole

2.1 The legislative provisions relating to parole in Victoria are mainly contained in the Community Welfare Services Act 1970 and any references to sections hereafter (unless otherwise identified) are references to sections in that Act. The full text of the relevant sections is set out in Schedule Two.

2.2 By section 190, where a person is convicted of any offence and sentenced to be imprisoned for a term of not less than twelve months, the Court is empowered as part of the sentence, to fix a lesser term (called 'the minimum term') during which the offender shall not be eligible to be released on parole. If the term of imprisonment imposed is not less than .two years, the Court is required to fix such a minimum term unless it considers that the nature of the offence and the antecedents of the offender render the fixing of a minimum term inappropriate. A minimum term so fixed shall be at least six months less than the term of the sent~nce.

2. First Report of the Criminal Law and Penal Methods Reform Committee of South Australia (the 'Mitchell Report') 1973; Report of the Royal Commission into New South Wales Prisons (the 'Nagle Report') 1978; Report of the Committee Appointed to Review the Parole of Prisoners Act (N.S.W.) (the 'Muir Report') 1979; Report on Parole, Prison Accommodation and Leave from Prison in Western Australia (the 'Parker Report') 1979.

3. See paragraphs 2.27 to 2.57 (infra).

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2.3 B~ section 178, an Adult Parole Board is constituted. The Board shall consist of­(a) a Judge of the Supreme Court; (b) the Director-General of Community Welfare Services' (c) a full-time member appointed by the Governor in C~uncil'

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(d) two other persons appointed by the Governor in Council one of whom shall be a ~mm. . '

2.4 By ~ection 195, th~ Adult Parole B~ard ~ay in its discretion by a parole order, direct that ~ pnsoner undergo1Og a s~ntence of Impnsonment in respect of which a minimum ter was fl~~d be released fr~m pnson on parole at a time which is not before the ex iration ~ t~e mI~Imum term. UntIl the expiration of the term of imprisonment the BoardP~a .' in it dIscre~IOn vary the parole or.der or ~ancel the parole, and if during that period, the p;isone: ~om~llts an off~nce for ~~Ich he IS subsequently sentenced to more than three Impnsonment hI~ parole IS IpSO ~acto cancelled. Where a prisoner's parole is so can~~17~~s no pa~t of the. tIme ~etween hIS release on parole and his recommencin to serve th~ uhnexpIred p(ortIO~ of hIS term of imprisonment shall be regarded as time serv!d in respect of t at term. SectIon 197).

2.5 Whil~t he is on pa~ole, he shall be under the supervision of a parole officer and shall comply WIth such reqUIrements as are specified in the parole order. (Section 195 (3».

2.6 The. legislation al~o provides for further release upon parole notwithstanding th cancellatIOn of an earher parole. (Section 198). e

B. Practice and Procedure Regarding Parole

?7 In conside!ing the practice in Victoria in regard to parole, an important starting point IS the law, as I~Id down by the Full Supreme C~urt, regarding the principles to be observed by the sentenc10g Court. The system of parole 10 some other jurisdictions is often criticised on the alleged gro~n? that the C~urt, in fixing both the length of the sentence imposed and the length of the mInImUm term,. IS apt to regard the latter as the sentence appropriate to be served by the offender f?r ~he cnme that he has committed, and in fixing the former is more co~ce~ned by .th~ ~ublI~ Impac.t it will make in the way of general deterrence and in satIsfymg pu?lIc 1OdIg~a~IOn excIted by the crime. Each of these latter factors may have a part to 'play 10 determ10mg .the appropriate sentence to be imposed, but to allow them to determ10e the sent~nce, wIthout. regard to the circumstances relevant to the particular offender, could ?bVIOusly. result 10 an offender being unjustly treated. In Victoria, very shortly after the 1Otro.duc~IOn of the parole system in 1957, the Full Court emphasized that under tl!e parole legIslatI~n, the sentence to be imposed by the Court is the sentence ~ppro~n~te to the o~ence ~n all the circumstances, and then, but only then, the Court is to fIX a mInImUm term I~ the lIght of the duration of the sentence imposed. The Full Court has on a number of occaSIOns thereafter reasserted this principle. (See R. v. DOUGLAS (1959) V.R. 182: R. v. Governor of Her Majesty's Gaol at Pentridge, Ex parte CUSMANO (1966) V.~. 58~, R .. v. Bruce (1971) v:.R. 656; R. v. CURREY (1975) V. R. 647). According to the law ~n VIctona, th~refore, a pns~ner, whether or !lot h.e is released upon parole for any part of ~lIS sentence WIll not. be reqUIred to be kept 10 pnson for any period longer than that wh~ch the Court ?as deCIded was a proper and appropriate sentence for the particular crime whIch he commItted.

2.8 It is of interest to note at this stage, the result of an analysis which the Committee requested to be made of minimum terms fixed in Victoria as a proportion of the effective

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terms of imprisonment imposed. Statistics had ~ot previously been kept up~n this n:atter, and in view of the time involved it was not practIcable to do more than examme the figures over a comparatively short period. The analysis was accordingly restricted to sentences imposed in the Supreme and County ~ourts during 1980, and is set out in. S.chedule Three. In that period there were 453 persons m respect of whose sentences a mlmm~ll! term was fixed. In only 14 cases, all of which were in the lower range of sentences, the m~n!mum term was less than 30% of the effective sentence. In over 83% of the cases, the mmlmum term was at least 50% of· the sentence and in the great majority of those cases considerably exceeded that proportion. In the case of the longer sentences, the tendency to fix a much higher proportion of the sentence as the minimum term was ~uch more marked. There were 147 cases in which the sentence was 5 years or more, and m only 8 of those cases was the minimum term less than 50% of the sentence; in 117 of these cases the minimum .term was 60% or more of the sentence imposed.

2.9 Under the Victorian system it is unnecessary for a prisoner to make an application for parole. Twelve weeks before the date upon which the 'prisoll{~r is expe~ted to bec?~e eligible for parole, the Governor of the prison where he IS held IS respon~lb~e for advlSlng the Board of that date, which is determined after allowing for any remiSSions upon the minimum term to which the prisoner is entitled. We will subsequently discuss the question of the allowance of remissions upon the minimum term, but in order to expla~n. the procedure in relation to parole it is at this stage only necess.ary to state that such :emlssl.ons are allowed. If before sentence the prisoner had been held m custody for any penod WhICh, under the terms of section 202A of the Act, he is entitled to have reckoned as a period of imprisonment already served by him under the sentence, that period is also taken into account in determining his expect~d eligibility date. Officers of the Adult Parole Board then collate the material which is to be placed before the Board when the parole of the prisoner is to be considered. He is interviewed by a Par?le Officer who may also interview members of his family, plans for his accommodatIOn and work upon release are investigated, and any other matters which are relevant to his suitability ~or relea~e are examined. Reports upon these matters are prepared for the Board and If the prIsoner himself desires to prepare a submission it is included in the material to be considered.

2.10 The Adult Parole Board normally meets weekly and as a result of the arrangements which are made for the early consideration of parole for those whose eligibility date is approaching, it appears that there are few cases in which any delay in ma~ing a decisi~n occurs. The Annual Report of the Board for the year ended 30 June, 1979 states th~t m that year 568 persons were released upon parole. Of that number 1~5.persons were e~ther beina re-paroled or were young persons transferred from a youth trammg centre. By virtue of se~tion 177 of the Act the latter class are regarded as having served their minimum term prior to transfer and the elapse of some further time before they could be rele.ased upon parole is inevitable. Of the remaining 373 persons released upon parole, 331, I.e. almost 90% were so released within one month of their eligibility dates, and the other 42 included pe~s~ns in respect of whom the Board required psychiatric or othe: reports or who had further trials outstanding. These figures of course, are not conclUSive but they strongly suggest that, as a general rule, a prisoner is re~eased as soon a~ practicable after he becomes eligible for release, unless the Board has decided that there IS a good reason to defer §uch release.

2.11 Apart from cases where the Board desire~ t~ obtain some further information, th~re are certain circumstances in which the Board IS lIkely to defer release for a short penod bey.:md the date upon which the prisoner becomes eligible. If the prisoner had been

4. This report was the most recent printed report of the Board which was available to the Committee when this report was prepared.

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relea~ed upon parole on any o~casion during the preceding ten years, his release will almost Cer~aI~ly be defe~red for a penod beyond his expected eligibility date. The usual period of suc. ef~rment I~ th:ee ~onths, .which if he is granted full remissions in respect of that P;rIO~ ~I~l.result m his bemg reqUIred to serve an additional two months in custody beyond t e ehgl?lhty date. This procedure is adopted by the Board in order to emphasize to the prospe~t~ve p~~olee that one of the main purposes of parole is to enable him to become a !aw-abldmg CltIze~. The Board considers that this purpose is likely to be more forcibly Imp~essed u~on h~m by the ~eferral of his release on the ground that his release on the e:rher occasIOn faIled to ?btam t~at result, and the deferment consequently applies even if t e parole granted to him prevIously was completed satisfactorily.

2.12 Apart from such short deferments for practical or diSciplinary reasons the Board may of course defer :elease for m~ch longer periods or may deny parole alto'gether. If a parolee has broken.hIs parole. and IS r~turned t? prison, he may well be required to serve abo~t one-half of ~he unexp~red portIon of .hIS sentence, as well as the imprisonment reqUIre? by any new sen.tence Imposed upon him, before he will be reparoled. On the other hand, If. the c~ncellatlOn of pa~ole resulted automatically fmm conviction upon a com'paratIve~y mmo: offence, he mIght be.reparoled soon after serving the new sentence. If the mformatlOn avaIlable to the Board, eIther at the time when it is considering the initial release upon parole or .when it is considering re-parole, leads it to believe that the prisoner would not be a good nsk on parole, parole may be denied. The Board however does not norm~lly delay or d~ny parol~ on the ground of any breaches of discipline or unsatisfactory behaVIOur ~y the p~lsoner d~nng his confinement in prison; it regards the loss of remissions or any ~um~h~~~t Imposed m c~n.sequence of such misbehaviour, which in themselves may affect his elIg~bIllty date? as suffiCient to meet that situation. It is not however possible to st~te . exhaust.Iv~ly the. CIrcumstances und~r which the Board may defer or deny parole. ~Ithm. the lImits which the Court has fixed, release upon parole is a matter for the ?IScretu:)fl of the Board, but the circumstances to which we have referred are cited as IllustratIons of the procedure it is likely to adopt in situations which are frequently encountered.

2.13 The ~igures contained in.t~e R~port of the Board for the year ending 30th June 1979 show that m that year, the pOSItIon, fIrstly as to cases where parole was denied and secondly as to cases where parole was deferred~ was as follows:

(a) As to the denial of parole Du~ing ~he year, par?le was gra~ted in 453.cases (i.e. 568 less 115 reparoles); it was demed m 60 cases, m 32.of which the prIsoner had previously been released on parole on 2 or more occasIOns. Reparole was granted in 115 cases and denied in 55 cases~ in 42 of which the prisoner had previously been released on 2 or more ~ccaslOn~ .. Consequently, there was a total of 683 cases in which the Board made a fmal deCISion as to whether a pris?ner should or should not be paroled or reparoled on t~he sentenc~ he wa~ then servmg. In all but 28 of the cases in which parole was demed, the pnsoner either had already been released at least twice on parole or had br~ached a parole on the current sentence. The 28 cases represent a proportion of 4% of the total.

(b) As to the deferral of parole The Report states that there were 276 cases in which parole was deferred. These cases c~~not be added to the total of cases in which a final decision was made as an unspecIfied number of them would be included amongst those in which parole was granted later in the same year. The Report however states that of the 276 cases, 59 were. ~ersons who were tra.nsferred to the jurisdiction of the Board pursuant to the prov~sIOns of the Commumty Welfare Services Act, and 170 were persons who had prevIOusly been released upon parole. As to the first of these groups we have

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already pointed out in para. 2.10 that some deferment of release beyond the eligibility date is inevitable in the case of young person~ transfer:ed from a youth training centre. As to the second group we have also l?om~ed out m para 2.11.' that the Board will normally defer release for a short penod m order to emphasize to the prisoner the desirability of his abstaining from f~rther br~aches of the law. The remainder of the deferred cases i.e. less tha~ 50, IS stated m .the Repo~.t to ha~e resulted from circumstances which are therem set out and which are bOLh readily understandable and appear to be reasonable.

2.14 Prisoners who become eligible for parole are held in pris?ns which are sc~ttered over the State and the dates upon which the prisoners are respec~lvely to be co~sldered for a decision as to parole will spread over the whole year. It is obVIOusly not practI.cable f~r any Board even if its members were engaged full-time, to journey to eac~ pnson were a prison~r is held to consider his case for parole at a til!le whe~ it is appropnate for su~h ~ase to be considered. It is also impractical, from the pomt of v,lew of travel, accommo atIOn, and security considerations, to assemble at some central pomt where t~e Board ~ay mee'~i all risoners whose cases are then due to be considered. As we have SaI~, the pn~oner WI hate been interviewed by a Parole Officer and a report prepared forthe .. fonnatlOn dor t~e Board, including any submission which the prisoner .himse!f I1l:ay desire to ~ave consl ere

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The Board normally meets at weekly intervals at ItS. office .1I~. Melbourn,;, and upo.n t .e t . I hich har. been placed before it. makes ItS deCISion as to parole, which IS

:~%~ni~ted to the prisoner through the prison authorities. If ~e ha~ be~n granted pa~ole, he is then normally required to attend before the Board when hIS obhgat.IOns a;re ~~~lamed to him This procedure has in the case of other jurisdictions been the subject of cr.lt.lc.lsm, to which ~e will subsequently advert. It is however releva~t in relation to these cntIclsms ~o refer to the art which is played in Victoria by the Full-tl~e member of ~he Board. We ~Ill do so after tutlining the procedure in regard to a cancellatIOn of parole, In respect to which his activities are also relevant.

2 15 We have already referred to the statutory provisions r~lating. to the cailcellationh

of p~role namely that parole is ipso facto cancelled whe~e the pnsoner IS senj;nced to an~~t eJ term ~f im risonment for more than three months m respect of any.o ence comml e d . th P Ie period and that apart from such ipso facto cancellatIon, the Board may inuI~~~isc~~~~~ at any time befor~ the expiration o~ t~e par~le period cancel :h~ l?ar?le.

. This latter ower extends of course to cases of conVIctIon .whlc~ have not resu te m IPS.O facto cancef.ation and to breaches of other conditions contamed m the par~le order, l~ut It :s not restricted to these circumstances. In practice how~ve~, the power Ids. norma

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. 'f h duct of the parolee is such as to mdIcate a gross Isregar or I exe!c~~~~n; o~ i~ ~~~er ways a danger that his parole .will not be satisfactorily co~pleted. ~~~! in such eases the Board may consider that a warnmg conveyed to the parolee el~her ~y

. . b attendance before the Board wIll suffice. It IS not necessary t at t e hiS p~rol~ off:~e~eo~eJuired to attend before the Board before an order for cancellatio~ is paro ee sd~u . e g I'f he has disappea.red it would be impracticable so to reqUIre. made an m manv cases . . . , b d f th Whedever parole is cancelled, whether ipso facto upon a .further se~,tednce or .it o~ e~ 0 th e B d the Board will consider whether reparole wIll be deme . or WI e ur er oar, . d . considered at a date which it will then etermme.

2 16 The office of a full-time member of the Board, appointed by the ~cvernor in C:ouncil, ~as estahlished by an amendment of the Act in 1974. Apart from hiS normal du.tIes as a member of the Board, he a'2ts as a liaison officer between the :Soard a~d the pnson and parole administrations and the prisoners. ~t o'-,lr request.he pro.vldeduswlth a statement of his main duties and mode of operation WhICh IS set out m full m Schedul.e Fou~, From ~h.e point of view of his contact with the prisoners, it will be obs~rved that he IS reqUlr~d ~o VISit all prisons and departmental offices to ensure that pnsoners wpn c.ome wlthm the

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jurisdic!ion o! the B?ard are aware of the nature of the parole scheme and its operation, that he mterVIeWS pnsoners whose cases have been considered by the B~ard or whose cases for :elease are .a?ou~ to be ~onsidered, that where release upon parole has been deferred or demed th~ decI~Ion IS explamed and ~iscussed, that he hears representations from prisoners and proVIdes mformatIOn and adVIce when they desire to have their cases further considered by the Board, and that he himself will bring cases to the attention of the Boa.rd for furt~er con~idera.ti.on. He is ~lso available to discuss cases and to hear representations from pnsoners famIhes and fnends and their legal representatives.

2.17. We have outlined the foregoing procedure, partly from information given to us by the Chairman and other members of the Board and partly from a booklet called 'On Parole' whi.ch was p~blished by t~e then Social Welfare Department in April 1978. The booklet was deSigned to mform all pnsoners who were eligible for parole of the nature and incidents of ~he par~le sys~em ~nd it sets out in a comprehensive and easily readable form the mformatIOn which Will enable them to understand the system. We were informed however that the booklet is now out of print and although it is intended to have a revised issue printed, ~ ~~ortage .of finance in the D~part~ent. had ~o far made this impracticable. In view of !he ~ntIcls~ which at the present time IS bemg dIrected against the parole system and WhICh m part .IS based upon. an alleged uncertainty by prisoners as to how they will be tr~ated unde~ It, w~ c.onsIder It unfortunate that the booklet is not generally available to all pnsoners !allmg wIthm the ~yst~m. The possession of a printed statement of the principles and pr~ctIce Of. the system IS h~ely to be of mo!e enduring value to a prisoner than the verbal mformatIOn he may obtam from the full-time member or from other officers in the Department and the cost of the publication would be a minor element in the overall administrative expenditure.

c. The Benefits of the Parole System

2.18 There can be little doubt that a properly administered parole system is capable of conferring considerable benefits both upon the community and upon the prisoners to whom it applies. Those benefits may be assessed, both from the penological and from the financial points of view.

2.19 The imposition of a sentence of imprisonment, part of which is directed to be served in the normal way by incarceration and the remainder of which may be suspended for a period during which the prisoner is released upon certain conditions relating to his behaviour is in appropriate cases a commendable criminal sanction. It combines the deterrent and retributive effects of actual imprisonment with the deterrent effect of threatened further imprisonment. It enables the Court to indicate to the o~fender and to the community the degree of seriousness with which it regards the crime which the offender has committed, by imposing the punishment which he shall be liable to suffer for that crime. But it also gives the offender the opportunity by his conduct thereafter to mitigate the severity of that punishment.

2.20 When an offender has committed a crime which is serious enough to warrant a substantial period of imprisonment, the appropriate length of the sentence to be imposed upon him should be such as to indicate to him and to the community the degree of seriousness with which the crime he has committed, having regard to all the attendant ciTcumstances, should be regarded. Such a sentence will accord with the general objective of the criminal law of deterring potential offenders from committing similar crimes. It will also adequately cover any aspect of retribution which may legitimately be r~quired and goes as far as justice will permit it to go as a deterrent to the particular offender from committing future unsocial acts. Although no problem in sentencing is easy, the determination of the

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length of sentence which is necessary for these purposes is the type of problem with which the Court is familiar and with which it is usually competent to deal upon the material which is available to it at the time. of sentencing. An offender whose sentence is determined on these principles can have no legitimate ground for complaint if he is required to serve the sentence imposed upon him. From the practical point of view, however, the purpose of the criminal law of protecting the community from the commission of criminal acts may still be attained if the prisoner is given the opportunity by his subsequent conduct to mitigate the punishment imposed upon him. There will be some cases in which such an opportunity for m.itigation of the punishment will be clearly inappropriate. The very nature of the crime that the offender has committed or his antecedent history may be such that the Court considers that, irrespective of how he may subsequently behave, the interests of the community rel{uire that he should be incarcerated until the term of the sentence it has imposed has been served. But when the Court has considered that neither of these disqualifications apply, it would appear to be an enlightened approach to penal practice to allow to the prisoner an opportunity to earn some alleviation of the punishment imposed upon him. The Court however may consider that there are limits to the degree to which he may be permitted to mitigate a punishment which it has considered appropriate to the crime which he has committed. It may consider that the interests of justice require that he should at least serve a certain period in prison, both from the point of view of retribution and of deterrence. The appropriate length of such a minimum period of imprisonment is again a problem which a Court should be qualified to determine upon the material which is available to it at the time of sentencing.

2.21 It is upon these considerations that the legislation in Victoria relating to the parole system is based. At the time of sentencing, the Court fixes the period of the sentence which in its opinion is appropriate to the crime which the offender has committed and at the same time fixes the minimum period in prison which he will be required to serve before he can be given the opportunity to mitigate the punishment which has been imposed upon him. After he has served that minimum term, the legislation permits a review to be made as to whether the safety of the community requires that he should be held in custody for some further part or even for the whole of the sentence which has been imposed upon him. If, after such review, it is decided to release him on parole and he successfully completes his period of parole, the purpose of the original sentence as far as he himSelf is concerned would appear to have been substantially attained, i.e. the community has been protected from any further offences by him during the currency of his sentence, and he has been punished for his offence by a period of incarceration and by a continuing liability to serve the balance of his sentence in the event of proven misbehaviour during his parole. Whether of course he has been as successfully deterred by his experience from committing further offences after his parole expires, as he would have been by imprisonment for the whole of his sentence, can never be established, but at least the results which have been attained have been so attained without the cost to both him and the community which his further imprisonment would have involved. If, on the other hand, upon release upon parole his conduct shows that such release was premature, he can be recalled and imprisoned under the sanction of the sentence originally imposed upon him for the crime he had committed, and as the further imprisonment to which he is liable is limited to the balance of the sentence which he has not served, his punishment for that crime remains the same as that which was originally adjudged to be appropriate. He has merely thrown away the opportunity which was afforded to him to mitigate that punishment.

2.22 In referring to the opportunity for mitigation 0: the sentence which a system of parole. offers, we have not overlooked the existence of provision for remission of sentences which' also operates as a mitigation of the sentence originally imposed. Such remissions may be granted to a prisoner who has earned them by diligence and good conduct during the period while he is incarcerated. They apply whether the sentence is one upon which the prisoner is

8

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eligible for parole or not. At a later sta e 'll' prisoner who is eligible for parole but ~t 't:.e ~1 dISCUSS them ~nd ~heir application to a follow from the parole system itself. IS s age we are consldenng the results which

2.23 In another respect it can be claimed that furthering the proper objectives of penal a~f adequate parole system assists in referred to as the rehabilitation of the . measures. such measures can achieve what is sig~ificant benefit. Rehabilitation in t~~1~~~:~,!~!~sh~h and the community have gained a whIch predisposes him against the com " fie development of a state of mind state of mind may develop from a fea~~:IO~n~sh: awf~1 act~. On the. low.er plane that accurately described as reSUlting from effecl d tent, 111 WhICh c~se It mIght be more from a combination of many mental or emot:~~al e frren~e. ~~ ~he hlg~er plane, it results name, but which guidance and advice rna hel t ; e;nen s w .IC . we WIll not endeavour to treatment, there is at present little OPti~is p t~ tO~ er. D~spIte Improvements in prisoner except as a response to deterrence will o~en ~ 111~. pn~on atmosphere rehabilitation, requires regular contact with and' su " ~ ac leve . On t~e other hand, parole relationship has been established betwe~;rvlsI~n y d a parole ?fflcer. If a satisfactory maintained, there are two results which m paro ee an parole o~fI~er and regular contact is the obligation to maintain such contact sho~dr~asOIllably be antICIpated. In the first place, the parolee of the dangers which he faces ·f eve op a c.onstant awareness on the part of benefit of deterrence Secondly the gUI'daln he brdeacdh~s hlsfParole and thus strengthen the l'k I " ce an a vIce 0 an offic h h . 1 e.y to be fa~ more conducive to his rehabilitation 0 th h' h I er w om e respects IS

adVIce to WhICh he would be sub' ected . . n. e Ig er p ane t~an any contacts or beneficial results to be achieved ~nless ~~ pnson. It IS .of ~ourse futile to expect these ?rganized, but if it is not, this is a failing of the p~ro~e. serv~ce IS adequately and efficiently 111 the concept of parole. e a mInIstratIOn of the system and hot a defect

2.24 In evaluating the benefits of the parole st' V· .... to make a study of the statistics which have beYS e~/~ dl~tor~a, It IS 111teresting at this stage its operations on 1 July 1957 In the 22 t e~~~ a e y t e Parole Board since it began parole were made and of th~t numbe/:~~2~ f thune 19i9, a total of 14993 releases upon cancellation. 696 persons were still on a;ol 0 e paro es had been completed without Board or automatically by reconviction ~n 42~ and parole ha~ been cancelled either by the upon parole, those figures show that 70% o~ c~ses. E~c1ud111g the persons who were stilI completed. Some of the prisoners shown bI

.e paro es granted had been successfully

former release upon an unsuccessful parole ~hi~~~ r~~ased had been reparoled after a shown would exceed the number of individ~al t ou mean that the number of releases shown as being successfully completed woul~ ~o~~IY r~easeg; but the nu.mber of paroles release and would accurately reflect the numb e fa. ~t~ d by an earlIer unsuccessful completed a period of parole It follows th er 0 111 IVI uals wh~ had successfully released upon parole who succ~ssfully cO~Plete:~fore ~h~t ~he proportIOn of individuals the 70% which these fi ures rna f a per!o 0 parole would be higher than than that percentage, !ccording

y t~t t~~stn~U!t~st, ~nd 111defd l!lay be c~nsiderably higher releases. These figures would of course r 0 reparo e~ 111~luded 111 the number of of the parole periods for prisoners Wh~~~~~~s~t l~ollated. WIth flgu~es showing the length obtain an accurate assessment of the saving to th~ It ~om~~t~d hthelr paroles in order to affected. These latter figures are not available to us bu~ ef ~6~c t e reieases on parole had the year 1978179, the parole period for more than halfoof th persons/eleased on parole in more and for less than 10% of them was under s· ~Jn was ?r twelve months or in previous years was substantially similar ~ m~nth~. It I~ not unlIkely that the pitture

. maintaining prisoners in gaols it cannot be d~ub~aJJ~; mh

mmd the very great cost of resulted in an immense saving of public fu d de. atht e parol~ syst~m i.n Victoria has operation. n s unng t e years m whIch It has been in

9

2.25 The cost of maintaining the prisoner in gaol is no~ the only saving which results from .a successful parole. The imprisonment of an offender wIll oft~n mean that the suppor~ of hIS de end ants will become a charge upon public funds, and hIS return to the commun~ty ~s a 1 f al member of the work force reduces the likelihood of that ~harge contlOulOg. :o~~o~er it is not only in terms of direct financial gain that the benefIt to the State o~ a successful parole can be measured. Imprison~ent of a~ ~ffen?er protects th~ commumty from further offences by him during the penod of hIS Impnsonmen.t, bu~ If he can be successfully inhibited from committing such offences for the same penod wlthou~ a~t~ally s ending the whole of it in prison, it is unnecessary for. us to elaborate upon th~ sIgmficant s~cial advantage which will have accrued both to hIm and to the commumty.

2 26 In view of these various considerations, it is not surprising ~ha~ ~hen the parol~ system . v.:as introduced into Victoria in 1957, it was regarded as a sIgmficant advance 10 penal administration and was subsequently adopted by other States and by the Commonwealth. The statistical analysis to which we have already referred, which showed that over 70% of the parolees who had been released in the first twenty-two years ~f ~he scheme had successfully completed their parole, appears moreov~r t.o afford ~onv.lOcm? ~roof of t~e

1 e of the scheme. It may be however that, despite ItS attraction ~n pnnclple and ItS ~~~ctiveness in practice, a process in penal adI?inistrat~on ~on~ains senous defects. It may be that the necessary machinery for its practI~al a1?plIcatlO~ lOvolves su.ch unac~eptable departures from other principles of penal admimstratlOn that It shou~d be dlscard~d 10 order to preserve the latter principles. It may be that .it is so prone to m~sunderstandlOg and to misapplication that in practice it creates more s~nous problems than It solves. Insofar as any d'ff' It' whl'ch it creates are capable of belOg met by procedural amendments, those

I ICU les . . d' . t b de upon a amendments should be made, but if difficulties still re~alO, a eClSIon ~us e rna balance of its merits and demerits as to whether It should be retamed.

D. The Criticisms of the Parole System

227 We have already mentioned several official reports,S which contain cri~ici~ms of the p~role system as it operates in a number of Australian jurisdi~tions. We then lO?Icate~ that as we were concerned with the system in Victoria we di.d not lOt~n~ t~ a~alyse 10 det~Il the criticisms contained in such reports of parole systems 10 other J~n~dlctlOns, except 10 the case of the Interim Report of the Australian Law Reform Commisslo~. We a~knowledged however the assistance we had received from such ot~er reports 10 formlOg .o~r own opinions. In the case of the Interim Report of the AustralIan Law Reform ~ommlsslon (to which we will hereafter refer as the A.L.R.C. Report), the ~act that It alone of the Australian reports recommended the abolition of parole and th~t It e~pressed the hope that . State Parliaments would decide to abolish State p~role .m~de It deSIrable that we should. examine in some detail the criticisms of parole contamed 10 It, and the reasons advanced for such criticisms.

228 The terms of reference of the Australian Law Reform.Commi~sion we~e to revie~ and . th 1 f the Commonwealth and the AustralIan CapItal Terntory relatlOg to

rep~rt on 't' e aWf s °nI'shment for offences and any related matters. The recommendations the Imposl Ion 0 pu 1 d' 1 r . ted to parole . th A L R C Report insofar as they relate to paro e, are accor 109 y Imi ~n r F~de~ai ;is~ners i.~. offenders who are sentenced to imprisonment by Federal Courts ~ b State tourts e;ercising Federal jurisdiction. The Report states that on 31 I?ece~ber ~97;the number of Federal prisoners represented about 3% of the total AustralIan pnson

5. See paragraph 7 supra.

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Popu.l~tion (para .. 168). Not all prisoners are of course eligible for parole under existing condItions, parole 10 th~ great majority of cases being limited to prisoners serving sentences of one year or more. It IS however clear that the number of Federal prisoners who would be affected by th.e Commission's recommendation for the abolition of parole would be a very small ~ro'por~lOn of.the number of prisoners in Australia who are eligible for parole. The CommISSIon Itself, II?- answer ~o the suggestion that the adoption of its recommendation ~o.uld create chaos 10 correctIOnal systems around the country, states in paragraph 348 GIVen the small number of Federal prisoners, the overall impact of the abolition of

Common;.-ealth parole would be negligible'.

2.29 Howev~r, in considering the question of parole for Federal prisoners, the Commission had t? examme not only the problems which are peculiar to the Federal system but the question o~ whether generally the concept of parole was one which was desirable in a penal system. It IS clear .from the A.L.R:C. Report that it did not favour the general concept of parole. I.ns?far as ItS recommendat~ons relate to problems which are peculiar to the Federal sy~tem, It IS no~ part of our functIOn to debate those problems and we will refrain from dOl~g so: We wIll merely observe that it would be unfortunate if the conditions relating to the Impn~onment .of a small proportio.n of the prisoners sentenced by the Courts of a State and held 10 the pnsons of that State dIffered substantially from the conditions relating to a much larger proportion of those who were also so sentenced and held. However the observations of the Commission upon aspects of parole which are not peculiar to the Fed~ral system m~st ~learly be examined to determine the extent to which they are applIcable to the Vlctonan system, and to consider whether any changes should be made in that system.

2.30 In the summary of the A.L.R.C. Report (at p. XXVI), the Commission states 'Unfortunately, in practice, parole causes deeply felt and, in many cases, justifiably resented injustices. Parole has many failings. The chief of these are:

- it promotes indeterminancy and uncertainty in criminal punishment; - it is founded on the unaccepta'Jle assumption that conduct in society can be safely

predicted at all and, specifically, can be predicted on the basis of conduct in prison; - its proceedings are conducted in secrecy and parole decisions which affect the liberty

of individuals are unreviewable; and - it is a 'charade'. The spectacle of a long sentence of imprisonment no longer deceives

the community which knows that the offender will serve a much shorter period in prison before being released on parole.'

The arguments and the material upon which these assertions are based are dealt with at pp. 179-215 of the Report. As however it is not unlikely, in view of the length of the Report, that the summary will be more widely read than the full text of the Report, it is not inappropriate that we should make our comments upon the passage we have cited.

2.31 The introductory statement that, in practice, parole causes injustices is presllmably mainly based upon the failings which it is asserted to have, since the Commission docs not purport to have investigated any individual instance of alleged injustice. The statement that such injustices are deeply felt and in many cases justifiably resented is not surprising if the injustices in fact exist, but in the context of the Report is no doubt greatly influenced by an Offender Survey which the Commission conducted and the results of which are set out in Part 3 of Appendix D (pp. 521 et seq). Seventy one per cent of the prisoners who answered the questions stated that in their view the parole system as it then stood was either pretty unfair or very unfair (p. 529). However, a lesser percentage of 58% disagreed with a statement that parole procedures were really pretty fair (p. 530). Although it is described as a national survey, the questionnaire upon which it was based was distributed to all Federal prisoners and to prisoners in only one maximum security institution in each of New South

Wales and Victoria. Many prisoners did not answer the questionnaire (see Appendix D, p. 511), and it is reasonable to assume that those who did would be likely to include those who felt most strongly about the questions asked. The Commission concedes that the sample tested was not statistically representative of the entire prison population. Insofar as the questions related to parole, a more reliable indication of the attitude of State Offenders might have been obtained if, instead of being limited to prisoners in maximum security institutions, it had been practicable to include in the survey the views of offenders who were in fact upon parole at the time. It is also interesting to speculate upon what response the Commission would have received if it had asked the prisoners whether parole should be abolished. The A.L.R.C. Report does not segregate the answers given by prisoners in the Victorian maximum security institution, and in all the circumstances the survey gives no reliable indication of the extent of any dissatisfaction with the parole system in Victoria on the part of those to whom it applies. Some dissatisfaction by those who feel they have been unfairly treated, either by the original sentence or by the way in which the parole system has operated, can be assumed, but whether or not such dissatisfaction is likely to be so substantial as to amount to a material factor in determining whether a system of parole should be retained can certainly not be deduced from such an incomplete Offender Survey. Its likely strength can only be assessed from a consideration of the alleged failings in the system and the extent to which any of those which do exist may be remedied or mitigated.

2.32 The first alleged failing of parole to which the Commission refers in the summary is that it promotes 'indeterminancy and uncertainty' in criminal punishment. There is of course nothing indeterminate or uncertain about the sentence pronounced by the Court which fixes in definite terms both the length of the sentence and the length of the period which is to be served before the prisoner becomes eligible for parole. Remissions may vary these periods but remissions are available whether parole is provided for or not. At the outset it may be said that if a prisoner is to be given the opportunity by his subsequent conduct to mitigate the sentence which has been pronounced upon him by the Court, some uncertainty as to the actual period which he will spend in custody under the sentence is necessarily imported. That uncertainty however is largely dependant upon the quality of his subsequent conduct, which is a matter within his own control, and to that extent can hardly be regarded as a failing in the system of parole. It appears clear however, from para. 318 of the A.L.R.C. Report, where the Commission elaborates the objection which we have cited from the summary, that the Commission is referring to the uncertainty which derives from the fact that the controlling authority has to decide whether and, if so, when a prisoner will be released upon parole, both at the initial stage when he has completed the non-parole period which the Court has fixed and also at a subsequent stage, if he has been released upon parole and his parole has been cancelled. It criticises this uncertainty upon what it describes as 'two basic grounds'; first, that the decision to release on parole is too often exercised in a haphazard and idiosyncratic way, and not in a consistent and principled fashion, and second, that where discretion to release on parole is vested in parole boards, great anxiety is experienced by prisoners and their families when the parole application is being considered in their absence and in ways that are not known and understood.

2.33 The first of these two basic grounds upon which the Commission relies to assert uncertainty, namely, that the decision to release upon parole is too often exercised in a haphazard and idiosyncratic way and not in a consistent and principled fashion, is asserted as a fact and the material upon which it is based is not set out in the A.L.R.C. Report. It mayor may not be soundly based in regard to some jurisdictions; we express no opinion upon the matter as we are solely concerned with Victoria. In any system where a decision ultimately rests upon an exercise of discretion, different decisions in apparently similar cases may occur. Such differences however do not necessarily involve inconsistency, although they are frequently so described by critics who have not had or exercised the opportunity of examining the different considerations which have led to the different

12

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decisi.ons. No system of course is perfect and . . . ' less lIkely to occur when all the d " InCOnSIstencIes may OCcur But they are f tribunals d th eClSlOns are made by th . ar

. ' an e members of the tribunal hav e same and not by different ~hICh ~hey will naturally have developed guide ~orked tog.ether over a long period, during

ISCretI.on. '!'Ie ~re not aware of an evidenc e mes to aSSIst .the~. i~ the exercise of their B?~r? In Vlctona. Moreover, if suc6 evid . e to. suppor~ thIS cntIclsm in relation to the ~ntIc~sm, not of the system of pa.role itsel;~~~ ~~I:~S and IS cr~dible.' it would constitute a

oar was stated to operate. e manner m WhICh a particular parole

~.34 The. second basic ground u on which " .. mv~lyed In parole decisions is thft great anx~~~ ~ommls~IOn cntIcises the uncertainty famIlIes When the parole application is being co ~ dIS e~l?enen~ed by prisoners and their a~e no~ known and understood. We have alreadnsl ere In theIr absence and in ways that Vlct?na. to acquaint prisoners with the m Y re~erred to the steps which are taken in ~akIng ItS decision, both by published infor:~~~s Whl~\ the Board is likely to consider in t ~. ~oard. Insofar as the consideration of IOf an y a~cess to the fuII-time member of fntICIsm of the system may be warranted an~a~~. e .occurs In the absence of the prisoner hater ~!agl e. But as an element affecting the unc~r~~i~tmat:er to which. ~e wi~l advert at ~

ave Itt e relevance. y 0 parole deCISIons It appears to

2.35 It .is of course true that, as long as arole d . uncertaInty as to whether a prisoner will b I e~ends upon a dIscretionary system some be completely eliminated. In fact as the l~et e~~e ~hen he is eligible for parole cad never paragraph 318 of its Report, th~re is a r:a~~ Ian aw Refo.r~ Commission itself says in r~leased o~ co~pletion of the non-parole period :ab~~:r~babI1Ity that a prisoner will be ~ ow that I~ VIctoria by far the greater pro o~t'n fe I~ures th~t we have already cited6

ourt h~s fIxed a minimum term is released ~ Ion 0 pnsoners In respect of Whom the upon whIch they become eligible for such relea

n paf~le on or very shortly after the dates were not so released who would not be se. er~ would be very few of those who aware of the reason for such deferment. ;,war~ t~at theIr reIeas~ would be deferred and rep~role ~as denied, he can be assured th

ven m t e ~ase of a pnsoner to Whom parole or

per~od durmg which he will be kept in priso at, .~ccordIng to the law in Victoria, 7 the total decld~d was a proper and appropriate ~:te not exceed the pe~iod which the Court has commItted. In our opinion the element of ~ce for the partIcular crime which he t~e parole system, is not in Victoria a mat~~c~~taIn~y as.to ~f~lease, ~hich is inherent under t e system should be retained. major Slglll Icance m determining whether

2.36 The .second feature which in the sum . . of parole IS. that 'it is founded on the unac mary the ComD?Isslon states to be a main faiIin safely predIcted at all and specifically canc~~tabl~.ass~mptIon that conduct in society can b~ the body of the Report, the CommiSSion pre Icte on the basis of conduct in prison'. In prob!ems relating to parole 'which are fatalgt~e~ further. an? states that one of two basic predIct human behaviour with sufficient a ItS retentIOn IS the assumption that we can releas.ed on parole because they do c~uracy ~o conclude that some prisoners should be be~efltt~d b~ l?arole, whereas others s~~u~~s~~tute a threat to society and would be optIons In cnmInal punishment which d'd t (para. 329). There would be very few ~uman behaviour. In the primary task

I ot~e:~r s~~e extent del?end upon predictions of Imposed upon an offender and the de ree mlm.ng the pa~tIcular punishment to be det.errence as an element in such dete!m' o.f seventy of pumshment, the relevance of WhICh the punishment is likely to affect theI~~:lon reqUJres consideration of the extent to to whether or not a person charged should b ure

l condduct of t~e offender. The decision as

e re ease on ball, and, if so, the amount of

6. see paras. 2.10 and 2.13 (supra) 7. see para. 2.7 (supra)

13

bail, requires a prediction as to whether he is likely to !~spond to it. In regard to proce~ures which are more closely comparable to parole, the decIsIOn as to whether or not a particular offender should be released upon probation or upon a common law bond, or whether or not a sentence imposed upon an offender should be suspended, depends to the same degree as parole does upon a prediction as to how he is likely to behave during the currency of the period for which he is released. To suggest in rela~ion to any of the~e last t.h:ee procedures, that the inability to predict the behaviour of a particular offender WIth suffICIent accuracy to determine whether he should be so released is a. basic problem in the procedure which is fatal to its retention, would appear to us to be an extraordinary suggestion. And yet by parity of reasoning, the importance which the Commission attaches to this consideration in regard to parole }Vould appear to lead to this conclusion.

2.37 In our opinion, the Commission has attached far too great an importance to this alleged failing of parole, in treating it as a basic problem which is fatal to the retention of the system. We agree that the conduct of a prisoner in the prison has limited value in predicting what his conduct is likely to be if he is released. It may in some cases indicate that neither he nor the community is likely to be benefitted by his release, or it may in some cases support a legitimate hope that benefit will follow. When we interviewed him, however, the Chairman of the Board informed us, that, unless the behaviour of a prisoner in gaol was of such a nature as to indicate. tha~ his release would constit~te a danger ?f physical harm to members of the commumty, It was not n?rm~l~y. t.aken mto account m determining whether he should be released on parole at hIS el!gI?Ihty date. As "Ye have already said (in para. 2.12) the Boar~ regard~ th~ loss of remISSIons or any pum.s~~~nt imposed in consequence of misbehavIOur, whIch m themselves may aff~ct hIS ehg~bI~lty date, as sufficient to meet that situation. If, of course, complete accuracy m the predIction of a prisoner's future behaviour were essential to the maintenance of a system of parole, that accuracy could never be attained and the system would have to be abandoned. The figures however which we have already cited of the results of par~le in Victori.a indicate that in the vast majority of cases, parolees have completed theIr parole wI~hout proven misbehaviour. It would in our opinion have been a most unfortunate result If the 70% of parolees who completed their paroles without cancell~tion had bee~ deprived .of t~is opportunity to mitigate their punishment merely because It was not pOSSIble to predIct WIth accuracy at the time of their release what their subsequent conduct upon parole would be.

2.38 The third failing of parole to which the Commission alludes i.s that 'its l?ro~e~dings are conducted in secrecy and parole decision.s, whi~h affect the lIberty ~f mdlvlduals are unreviewable'. This is a criticism which raises senous problems and WhICh warran!s very careful examination. It is however a criticism of the procedure adopted m the implementation of the parole system rather than of the principle of parole. itselt. It is convenient that before we examine it in detail, we should study the fourth mam faIimg of parole which the Commission alleges.

2.39 The last main failing of parole which the Commission asserts in its summary is expressed in these terms i.e. 'it is a 'char~de'. !he spectacle of a long se~tence of imprisonment no long.er de.ceives the com~umty WhICh knows t~at the offen~er WIll serve a much shorter period m pnson before bemg rele~sed. on parole. In the l!lam body. of the A.L.R.C. Report, the Commission refers to a mmonty report of the MUIr Report.m New South Wales S which minority report contains the views of the Director of ProbatIOn and Parole in th~t State and which refers to confusion among members of the community because the Court has pronounced two different terms O! imprisonment in t~e sal!le sentence. (para. 343). In the concluding paragraph of the sectIOn of the Report dealIng WIth

8. Report of the Parole Review Committee chaired by Judge A.G. Muir, Q.C., to review the parole system in New South Wales, February 1979.

14

Parole, !he Commission says 'It (i.e parole) has been brought into disrepute in the co~mumty .and amon~st tho~e most intimately involved in it. From the point of view of ordmary CItIzens what IS seen IS a strange procedure whereby, even though a judicial officer has ordered an offender to be. sentenced to imprisonment for a term, the prisoner will in fact usuall~ serve a ,term th~t IS much less than the term imposed. This is why parole has be~n descnbed as a chara~e. The attempt to pretend that a very long sentence is imposed WhICh mo~t peop~e ~now wI!1 not be served is only likely to be effective as a deterrent if the pretence IS convmcmg. It .IS no longer so.' (para. 350). The description of parole as a charade was not of course. mvented by the Director of Probation and Parole in New South Wales nor b~ the Austrahan Law Reform Commission. It was so described by Professor Norval Morns, the then Dea~ of the Law School in the University of Chicago in a paper pr~sented at t~e 19th Austrahan Legal. Convention in July 1977. In the paper, in which he ~aId that he wlshe~ t? .focus on Amencan practice concerning, inter alia, parole, he said Parole allow~ for JUdICial announcement of larger punishments than are in fact carried out.

The tho~ght IS, apparently, t~us to maximise deterrence while reducing the suffering from the pumshment ac.tually applIed. For a few years, this charade may have been unnoticed, but by no~ everx judge k~ows the practice, as does the public. Judges who wish to punish severely.slmply. mflate theIr sentences to reflect anticipated deflation by the parole board. No one I.S deceIved, but und~r the va~aries of parole decisions subject to diffuse political. an~ publ!c ~ressures, some i?nsoners WIll suffer randomly, or worse, discriminatorily, to no SOCIal gam: (see 51 AustralIan Law Journal, p. 525). We are not concerned by the uses or a~u.s~s WhICh. may be made of the parole .system in. oth~r ju.risdictions, but with any cntIcisms WhICh m~y b~ pr?perly made o~ Its Opera!Ions m VIctoria. We have already refe!red to the law m Vlctona as to t.he baSIS ul?o.n whIch sentences are to be imposed and the Irrelevance of l?ar.ole board p~actIce to the fIxmg of those sentences. It is comforting to see that th~ CommISSIon ha~ not m t~rms .relie~ upon the views expressed by Dr. Morris in support o~ ItS recommendatlOn, but ItS reIteratIOn of the word 'charade' and its references to deceptIon and pretence suggest that it may not have been uninfluenced by them.

2.40 ~Ithou.gh the word 'charade' i~ literally inaPl?ropriate, it could perhaps be loosely use.d I~ r~latIo.n to a system under WhICh an offender IS sentenced to a term of imprisonment WhICh IS m?rdmately long for ~he ~ffence he has committed and which it is not intended that he sho~ld ~n fact serye. In VIctona the law r~quires that the sentence imposed should be one w~Ich IS appropnate to the offence commItted and to the circumstances in which it was commltte~. There IS no pretence about th~t sen~ence. ~f t~e prisoner is not made eligible for parole or If he throws away the opportumty WhICh he IS gIven by parole to mitigate it he is mtended to serve it and will in fact serve it. There is no 'charade' so far as people wh~ fully understand the system are concerned, and if, as the Commission asserts the community is no longer d~ceived. by, ~he sentence ,in,tposed, then nobody would be 'misled by it. The referenc~ to de.ceptIon IS the more dIffIcult to understand once it is realised that the lesser term dunng whIch the offender shall not be eligible to be released on parole is fixed by the court as part of.the s.entence (s.ection 190) and is announced in open Court at the same time as the term of Impnsonm~nt Imposed. That announcement in itself makes plain that the offender may not be reqUIred to serve the full term of the sentence imposed. If that fact ~ar:~nts. the descrip~ion of the procedure ~s a 'charade', the term could with equal JustIfIcatIon be .apphed to a procedure WhICh has been long established and is well recognized in many jurisdictions, namely, the suspended sentence. In that procedure the Court ~mposes a sentence of i~prisonment upon the offender, and then makes a provision by whIch, dependent. upon h~s. future conduct, he may not be required to serve it. A sentence ~akmg a pnsoner ehgIble ~O! parole achieves the same result as to a part of the senten.ce Imposed, although the deCISIon as to whether he will be required to serve it is commItted by t~e ~ourt to a parole board. At a later stage in the A.L.R.C. Report (para. 388), the CommISSIon supports the power of a Court to suspend sentences of imprisonment,

15

-- - - ---~--------- - ~ -

and in that context does not suggest that the procedure is a 'charade'. We also would make no such suggestion, and having regard to the manner in which the system of parole operates in Victoria, we see no justification for that system being so described.

2.41 Although we disagree with the terms which the Commission has employed in dealing with this matter, the question of the public reaction to parole is of course important. If a citizen learns that a prisoner, by the combined effect of parole and remissions, has been released at a time when he has served perhaps less than half of the sentence imposed upon him, it is not unlikely that the citizen would be considerably disturbed and may feel that the law has failed to give him and other member~ of the community the protection which the criminal law should provide. In jurisdictions where it is not uncommon for a Court to fix a non-parole period which appears disproportionately low in comparison with the sentence imposed, this problem is likely to be intensified. In Victoria fortunately, as we have already pointed out, the strong line that the Full Court has taken as to the principles upon which the head sentence should be imposed, make this latter result unlikely. The general public however, while it may understand the earlier release which is made possible by the fixing of a minimum term, is much less likely to be familiar with the generous remissions upon that term for which our law provides. In our opinion, it is because of this fact and because of a failure to appreciate that the prisoner, although released, still remains liable to serve the balance of his sentence if his parole is cancelled, that any hostile reaction to the system of parole by some members of the community is due. The principles of the system itself however cannot logically be condemned because of any dissatisfaction with the remissions allowed or because of any misunderstanding of the system.

2.42 A further aspe;;t of the reaction to the parole system is of course the reaction of prisoners themselves. Prisoners are inclined to resent any failure to release them on parole at the date upon which the Court has said they are eligible for it, however justified the refusal of parole may be. Such resentment is of course limited to the comparatively small proportion of prisoners who are so affected but at anyone time there may be a sizeable number of prisoners involved. In Victoria the appointment of the full time member of the Board, one of whose duties is to explain the decision and its reasons to a prisoner affected, is calculated to reduce any resentment felt, but some resentment will undoubtedly persist.

2.43 As we have previously said, the value of a system must be judged upon a balance of its merits and demerits. In Victoria, in our opinion, the extent of any public dissatisfaction with the system of parole, which has only been expressed in isolated cases, a.nd the existence of an unjustified resentment against it by a minority of prisoners, do not constitute a significant objection to a system which has resulted in substantial benefits in the great majority of cases.

E. The Questions of Procedure and Appeal

2.44 We turn now to consider the failing of parole which the Australian Law Reform Commission alludes to in the following terms, viz:- 'its proceedings are conducted in secrecy and paroie decisions, which affect the liberty of individuals are unreviewable'. As we have said, this is a criticism of the procedure adopted in the implementation of the parole system rather than of the principle of parole itself. But if a system necessarily involves the adoption of a certain procedure in order to make the system workable, any defects in that procedure may properly be relied upon in an attack upon the system itself.

2.45 When a decision is made by a Court, there are certain safeguards against possible injustice which exist. Those safeguards are a public hearing, the right of affected parties to be present and to be heard, access by interested parties to all material upon which the Court

16

ma~ ~ct, the giving of reasons for the decis' . deCISIOn. In Victoria, as in the case of lon, at;td ~lO~m.ally a ~Ight of appeal against the do not take place in public the priso m?st other JunsdIctIOns, SIttings of the Parole Board have access to the material upon whi~~rt~ n~t en~itled to be present and to be heard nor to ar:ived at are not generally promulgate~ ~~r ~ay ;ct, formal reasons for the decision pnsoner by the full time member and th ~ ou~ t ey may be communicated to the preliminary to examining the sigdificanc er~:~ no ngh.t ~f aPI?eal against the decision. As a ~nd th~ Parole Board, it is necessary tha~ ~he dese

. ~anatI~ns m procedure between a Court m theIr proper perspective. eCISIOns 0 the Board should be understood

2.46 Every individual Whose case comes bet h The Court has determined the maximum len o~~ ~f ~iBoard ~as alr~ady been befor;~ a Court. for the offence he has committed' it has d t g. me dunng WhICh he may be imprisoned parole during that period' it has decided ~herm~n~d whether or not he should be eligible for by the operation of the la~ under which it e :nI~I~um term.he must serve in custody; and ~s to whether and, if so, When and for what~e~i~~ ~~~i~~~Ii~e~ to th~ B?ard the decision . e should be released upon parole Th . . e ImIts whIch It has prescribed Implementation of the decision the Co~rt h e 1ecIsIons of the Board are therefore i~ is discharging an executive function Wh'l ~s ~ ready made and in making them the Board affect the liberty of individuals so d~ th 1 e Ifl IS true ~o say that the decisions of the Board as to whether the Royal prerogative of ~~:c re;ogl~z~d and a.ccep~ed executive decisions and as to whether he should receive remiss' y s ou e. exerCIsed m regard to a prisoner suggest that these latter two examples f Ions uI?on hIS .s~ntence. It would be novel to c?mpliance with the circumstances which ~tt:xecutIve d~cIsIOns sho?l.d only be made in CIrcumstances under which the Board m k .~d Jhe. l!lakmg of a deCISIOn by a Court. The the making of other executive decision~ es 1 s t~CIsIons are those which normally attend decisions may have been made liable t~ :~~:~l~ng to the extent to which these latter

2.47. In the case of the Parole Board the f ". pres]d~d ?ver by a Supreme Court Jud ~ and act that It IS an mdependent body which is ~ake mVIte a comparison between its

g proce~he verYd n~ure of the decisions which it has to

o~ever should not overlook the fact that it' ure an . t at of a Co~rt. Such a comparison deSIrable and practicable that some of th .IS I?~rformmg an executIve function If it is both should be altered to incorporate the safeg~ lI~I en~s of its I?roc~d~re as an exe~utive body procedure o~ a Court, then common sense ar s agamst pOSSIble mJust~ce which apply in the The AustralIan Law Reform Co " suggests that those alteratIOns should be mad P d' h . . mmlSSlon proposes (A L R eRe.

en mg t e abohtIOn of parole a number f' . .... eport, para. 341) that proposals relevant to the matt~r we a 0 mdt~nm f!1easures should be taken and th~

re now IScussmg are: '

(a) that prisoners should be iven f II . parole;. g u reasons When they are refused release upon

: (b) that pnsoners should have a general ri ht relatIOn to parole release decisions mad~ abOf access to documents considered in to be specifically provided for by the law?ut themselves, subject to exceptions

(c) at .least where the parole authority is inclined pnsoner should have a right to be present a d to ~efuse parole t~ a prisoner, such

(d) cou;"sel When parole decisions are made ~fttof e r~resented mcluding by legal reVIew of aU decisions concerning parole Sh~~:~gbe I~; '1 bl .

val a e to pnsoners.

2.48 It is convenient first to examine the . present and to be represented by counsel ;:~poS:1 t.h~t a pnsoner should have a right to be already pointed out in dealin with th en eCISIOns are m~de affecting him .. We have 9uite impracticable for the Bo~rd, eith:;;~~:~:~et of the. Board 111 Victo.ria, thalit would be IS due to be considered is held or to assemble II 0 ahpn~on where a pnsoner whose parole

, a suc prIsoners at a central point, in order

17

to enable a prisoner to be present when his case is b~ing considere.d. (see p~ra. 2.14 supra). To enable all affected prisoners to be present at the time when theIr respective paroles were due to be considered there would need to be several Boards operating full time. It would be most unlikely that any State would be prepared to assume the costly financial probl~m involved and even if it were, there would be two unfortunate .consequences. In t~e fIrst place, a proliferation of Boards would inc~ease the dan~e.r, w~Ich at the present time we consider is minimal in Victoria, of inconsIstency of deCISIons m regar~ to parole .. In the second place it would not be possible to appoint as members of a full time Boa~d, eIther a Supreme Co~rt Judge who was at the same time still activ~ly engaged in t~e dIscharge of normal judicial duties or the Director-General ?f Commumty Welfare ServIces. Both such appointments in our opinion materi.ally c?~tnbute. to the status of ~he. Board ~nd ~he confidence which can be placed upon ItS deCISIons. If m every case a prehmmary revle'Y f~rst took place and the right of appe~rance w~s l~mited to prisoners where, as the CommIssIon expresses it, the parole authonty was mchned to refuse parole, the number of ca~es concerned would of course be considerably reduced. Such a procedure,. however, whlc.h involves the Board in first forming a preliminary view adverse to the pnsoner bef~re hIS case was finally considered can hardly be c?nside!ed a satisfactory procedure, and ~n any event, whether the necessity for a dual consIderation of doubtful cas~s would !esult many substantial reduction in the overall workload may be open to .questIOn. ~f pn~oners were entitled to legal representation upon such hearings, when questIOns of.calhng WItnesses and of crossexamination of parole officers an~ doctors. 'Yho had fu.rmshed repor~s would naturally arise, the time involved in the makmg of deCISIons would Immeasurab~y mcre~se. The question of access to such reports, with which we subsequently deal, also raIses Se~I?US problems in regard to desirability. The Ch~irman ?f the P~role Board expressed t~e opmIOn that formal hearings relevant to parole, eIther WIth or WIthout lega~ representa.tI?n of the prisoner, would render the system unworkable, and we agree WIth that opmIOn.

2.49 In regard to the proposal that prisoners should be given full reasons when refused parole, we have already referred to the role of the full time member of the Board in Victoria in the explanation of Board decisions to the prisoners concerned. Insofar as a statement of the Board's reasons would be relevant to any contemplated appeal, any significance in the proposal depends upon whether such an appeal should be provided for and we subsequently discuss this question. In no other respect however does the proposal appear to effect any significant improvement in the Victorian Board's present procedure.

2.50 The proposal in regard to access to do~uments raises some serious difficulties. The documents with Which the Board will be mamly concerned are the report by the parole officer who has interviewed the prisoner and investigated the circumstances which are likely to exist upon his release, and any psychiatric or other medical. reports . whic~ m~y be relevant. In relation to the latter, it is obvious that they. may contam. matenal w~Ich m the best interests of the prisoner himself, should not be dIsclosed .to hIm. In relatIOn to the former, it must be recognised that the development of a satisfactory rapport between prisoner and parole officer will materially ~ssist the p~ospec~s of a suc~essful parole. :r~e Chairman of the Board informed us that thIS rapport IS consIdered so Important that If m fact a prisoner expressed dissatisfaction with a parole officer, another officer was usually appointed. The Board should be able to .rely upon reports b~ing frankly. given and he expressed the opinion that access by the pnsoner to reports of hIS parole offIcer coul.d lead to such reports either being 'watered down' so as not to dam~ge such ~apport or ~n fact, damaging it. The Commission itself recognised that so"!e exceptIOns to thI~ Eeneral ng~t of access should exist but it considered that such exceptions should be specIlIcally proVIded for by law, and the'only instance that it cited was 'a substantial ground of overriding public policy which warranted denia~ of ~ccess in a p~rticular case'. (A.~.R.C. Report,. para. 338). The resolution of that questIOn m any particular case, unless It were commItted to the decision of the Board alone, would raise practical difficulties which it is not necessary for us

18

~.--~- ---.----~------- --------~--------~-

to ela?orate. While it seems to be unfair that the granting or withholding of parole may mat~nall~ ?epend upon reports to which the prisoner is not allowed access, the confidentIaht~ of s~ch rep?rt~ is, in our opinion, an important aspect of the system of pa.role. Expenenc.e m f~ct mdicates that they are much more likely to err in favour of the pnsoner t~an ~gamst hI!ll: But insofar as they may operate against his interests, that is a danger WhICh m o~r opmIOn must on practical grounds be accepted as an incident of the system,. a.nd taken mto account when a balance is made between its merits and demerits in determmmg whether the system should be retained.

2.?1 The pr?p.osal that decisions by the .Parol~ Board sh(;mld be subject to appeal also raIses very dIffIcult pr.oblems. If a person IS demed a legal nght, it is proper that he should be able to appeal agamst that demal. But no prisoner of course has a legal right to parole under the ~ent~nce of the Court. He is made eligible for parole and his right is to have the Boa~d deCIde, m the proper. ~xercise of its discretion, whether or not he should be released and If ~o, upon what condItIons. We have already pointed out that the Court itself has ?e~ermmed b?th the upp~~ and lower limits within which that discretion may operate, and m Implementmg the .dec~sIOn o~ the Court, the Board is performing an executive act. In order h?weve.r to mamtat.n confld~nce in exe~u.tive bOd.ies and to guard against oppression or unfaIrness ~n the ex~rcise .of theIr po.~ers, It I~ sometImes desirable to provide for a right of appeal agamst t~~ diSCretI?nary deCISIons WhICh they are required to make. Vvhether in ~he case of parole It IS so deSIrable depends upon the consideration of a number of factors mcluding the practicability of operating a workable system of parole which provides fo; appeal.

2.?2. ~ne of the first q~Iestions is that of t~e tribunal to which any app\'!al would lie. In Victona, where the Chatrman of the Board IS a Judge of the Supreme Court, it is obvious that .the Supreme Court wo~ld be the appropriate tribunal if a right of app/~al was instituted, and It also appears appropnate that any such appeal should lie to the Full Court and not to a single jUdge. Under the Act (section 181(2», any question of law arising before the Board shall be decided by the Chairman alone. Appeals upon questions of law mIght arise, and it would be a very unusual course to provide for a right of appeal from one judge of the Supreme Court to another one on a question of law, whatever the capaC:lity may be in which they are respectively acting. It is not unreasonable to anticipate that,lf a right of appeal existed, the great majority of prisoners who were dissatidied with a decision of the Board and who would have nothing to lose by appealing?gainst it would in fact exercise the right. In the year 1978-79, the report of the Parole B\?ard shows that while 568 persons were released upon parole, 276 persons had their relea,se upon parole deferred and 91 persons had their parole cancelled by order of the Board, Even a prisoner who had been granted parole might consider that some condition attached to the parole was unduly onerous and desire to appeal against the order. The task of heariJ,ig appeals, even if a large proportion of them was frivolous, would obviously add a trem,~hdous burden to the work of the Full Court, if it were the appellate tribunal, or to the general w9rk of the Supreme Court if appeals to a single judge were allowed. If the hearing of appeals took place on an adversary basis with the examination and crossexamination of witnesses, the time and the cost involved in dealing with them would be very great indeed.

2.53 In dealing with the proposal that prisoners should be allowed access to material before the Board (para. 2.50 supra) we have already referred to the dangers which the loss of confidentiality in regard to such material would involve. On an appeal it is difficult to see how such confidentiality could be maintained and the same dangers would exist. We have also referred to the practical problems which would be involved if prisoners had a right to appear before the Board when their parole was being considered. (para. 2.48 supra). If they were to have such a right of appearance before an appellate tribunal on an appeal, problems of a similar type would arise.

19 1.

_ .... . - ----

2.54 The practical considerations to which we have adverted, in our opinion, make it undesirable to provide for a right of appeal to the Full Court. The alternative of an appeal to a single Judge of the Supreme Court also has undesirable features. In addition to any practical difficulties involved, the unsatisfactory position of an appeal from a Board consisting of a Supreme Court Judge and other experienced members to another Supreme Court Judge sitting alone would be created. Such a position would be bound to invite a comparison between the capacities of the respective tribunals, and would tend .to erode the confidence of an ultimately correct decision which an appellate procedure should provide. The constitution of the Parole Board in Victoria is in itself designed to reduce considerably the likely occurrence of those circumstances which in the case of some other executive bodies have suggested the desirability of an appeal procedure. Moreover, the availability of the full-time member to investigate complaints and if he thought fit to have a decision reconsidered by the Baord, and the consideration which the Board is prepared to give to letters received from prisoners, their relatjves or their representatiyes afford further safeguards against possible injustice. 2.55 In our opinion, for these reasons, it is not practicable to incorporate a satisfactory appellate procedure into the parole system in Victoria, and the absence of such a procedure is not likely to result in any substantial injustice. Insofar, however, as any potentiality for unfairness results from the absence of an appeal procedure, it is a matter to be taken into account in deterrrlining whether the parole system should be retained.

F. Summary and Conclusion

2.56 We have now examined the various objections to the parole system upon which the Australian Law Reform Commission relies to support its recommendation that the system should be abolished, apart from objections which are peculiar to the Federal system of parole and which are not relevant to an assessment of the parole system in Victoria. In the course of that examination we have conc1uded-

(a) that the element of uncertainty as to release, which is inherent under the parole system, is not in Victoria a matter of major significance in determining whether the system should be retained (paras. 2.32 to 2.35);

(b) that the difficulty of predicting future conduct exists in regard to many accepted criminal procedures and is not a sufficient reason for the abandonment of those procedures (paras. 2.36 to 2.37);

(c) that the extent of any public dissatisfaction with the system of parole and the existence of any unjustified resentment against it by a minority of prisoners do not in Victoria constitute a significant objection to the retention of the system, (paras.

2.41 to 2.43); and (d) that the procedure of the Adult Parole Board does involve some features which are

capable of operating unfairly against a prisoner, namely, the lack of access by a prisoner to material upon which the Board may rely, the lack of a right to appear or to be represented before the Board when his parole is under consideration, and the lack of a right of appeal against a decision of the Board; that it is not practicable to eliminate those features and still maintain a workable and satisfactory syntem of parole; but that in Victoria the constitution and the practice of the Board are likely to reduce considerably the danger of unfairness occurring (paras. 2.44 to 2.55).

2.57 It is in our opinion only upon the last of these conclusions that any case for the abolition of the parole system in Victoria could rest. Against it must be set the undoubted benefits which the system confers both upon the great majority of the prisoners to whom it applies and upon the community. We have examind those benefits at length in paragraphs 2.18 to 2.26 above. It maintains both the punitive and the deterrent aspects of sentencing,

20

---~-----

-------~-- ~ -- ----.--~ -~ ---~---------~----

but jt also gives a prisoner the opport 't t . . . . conduct in the community. It enabl~sn~r 0 dml!lgate hIS p~mshment by subsequent good f~~ily, to preserve his family life and to ~~_ e~t~~~s~h~. per;~~ Ofh parole to ~ain tain his cItIzen and a wage earner It aff d h ,lIl~se In t e commumty both as a the guidance and help of ~ pa;ol~~f~i~e~ °ftI?o~tu~lty for hIS !ehabilitation to be assisted by maintaining the prisoner in gaol' it may ~ 11ls ar esst~xp;ns~ve to the State than the cost of for his indigent dependants; and b reduc~n r~~o~:. e ur en fro~ th.e State of providing enormous capital cost of providi~g additi;nal If

y, gaol popula~IOn It may well save the

when properly operated is in our 0 . , gao accommodatIOn. The parole system procedures available in a corrective s ~I:::na~g~t of the. most humane and inexpensive proPfrtion of suc,:"ssful paroles whi~ the' Vict~r:a~~~:t::t:~~~:~a~d I by the ;ery high p~n~ admInIstratIOn, the possibility of some injusfc . 'd' 'dIS . n any .,ystem of

~~~m~~~~~;s b~:'s~~~~j!;~~n~~~u~c~~r:~~~~:~;;~~~~~~.):£:l~::iii~~~::!i~ We therefore recommend that the syst m if d I I b ' parr of the sentencing process. e 0 aut paro e e retamed in Victoria as an integral

2.58 At a late stage in the deliberations of the C ' t' ,

tand Wales, w~ich9had been prepared by the Homeo~~~ee:~da;:t~I~~~yf P19ar801le In Ebnglanhd o our attentIon In a nu b f' 'f ,was roug t

differs from that in Victori~ a~~ ~a~~T~~ l:~stt ~:~e~:!~v~~ i:;~tem . of par~le ,in England them. The English review is however factual d . , rawIng ~na ogles between different views and only expressing conclusions w~~n t~~;~tIVe, p:e~en~ng arguments for on the facts set out. Many of the facts set out and the; b Yl?ear 0 e eyond controversy the matters we have discussed in relation to ar . u. mls~IOns canvassed are relevant to the question of the abolition of arole p ole In VIctorIa. For example, in relation to b.en,efits which would be lost if par~le we~e (~~~~fs~~dh~n~;~2)f the review poi~ts o~t the SImIlar to those upon which we have relied" e acts ~pon ~hICh It relIes are further significant fact, namel that t In comIng to our conclUSIOn. I~ lI~deed sets out a England indicatedthat those r~leased ~~ ;OS\ re~nt. an~yses of reconvIctIOn statistics in imprisonment, had better reconviction rea:~r~~ t~~ltn~ho~~n ~~~tence~ ~o over four.ye.ars analyses have not been made in Victoria bu h gran e pa,role. Sl,mdar sug~esting that if they were made a similar favo~r:b~~~eaPfears to be no logIcal baSIS for reVIew also discusses (in paragraphs 67-83) the t' n tnc~ ~ould not be observed. The process onto the basically administrative proce~u~~ ~~i~h grf tIng some aspect~ of judicial deter~ined: It indicates, as we have done, the practical di~~ceu~~~ upo~ 1tarole l~ pr~sentIy the not unh~ely result that the disadvantages which would foll~~ '( IC wou h

anse and

would outweIgh any advantages obtained W d' . rom any suc process ?f the review in detail, but it does make ciear~h~ ?~kl~~f:dtow~ISCUt~ the v~rious aspects Introduced in 1968, its nature as an essentially adm' . t f ' en e paro e system was been so maintained up to the present time. InIS ra Ive process was asserted and has

2.59 In paragraph 55 of the review it is stated 'P I h im~~inative and successful develoments in aro e, as pro.ve~ one o~ the more OpInIOn in relation to parole in Vi~toria, Des;~d:~~l &~nal prac~ce. That IS our o~n England and Victoria they both fundamentall erences etween the systems In

a~J~~r~~~m:~~~~n~hs~sfy~~~!d i~u:~~i~i~;:rroe~de~bYf ~~~~i!?ot~n~~~~f~:s~f!n~~rO;u~!~~::~~~ th f f' d ,. . . y execu Ive process It is co t f

ere. ore to In thIS OpInIOn expressed so recently by the Ho Off' f' , m or Ing workmg of the system in En I d d WI'· me Ice a ter a revIew of the Justice Act 1967 came into 10~~e. an a es SInce the parole provisions of the Criminal

9. Review of Parole in England and Wales, Home Office, May 1981.

'21

3. Possible Modifications of the Victorian System . f 'bl odifications of the Victorian system of adult

3.1 We have exammed a nUI??er 0 POSSI . e ~ovements can be effected. In some cases the parole with a view to determmmg ;hethe~ Im~stem in another jurisdiction; in some cases it matter ~x.a~ined formed a part 0 a. ba~~~esexamination was not limited to those two types was a cntIcism of that parole s~ste~., ~ t to discuss each of the matters we have so of cases. It is not ne~essary m t IS .. epor rrant specific comment. These matters can be examined but some of them m our opIlllon. wa . . conveniently discussed under the followmg headmgs. .

(a) Eligibility for parole. . (b) Standard statutory non-parole peno?s .. (c) Combined effec~ of parole and remISSIOns. (d) Supervision durmg parole. . I cancelled. (e) Credit for time on parole If paro e (f) Parole during life sentences. (g) Guidelines for parole. (h) Automatic parole on short sentences.

A. Eligibility for Parole . . .' 'bl f d It arole if the Court fixes a minimum term m

3.2 In Victoria a pnson~r IS .ehgl, e ~r a o~elu on him. The Court cannet fix a minimum respect of a sentence of lIDpnsonment Imp th .f rna do so if the sentence is less than two term if the sentence is less than tw~v~. ~~~ll ~~ ISO if ihe sentence is not less than two years, years but not less. than tw.elve mont ~,I 1) • d to do so if it considers that the nature of the subject to a proVISO that It shall noft he rett~~er render the fixing of a minimum term offence and the antecedents 0 teo e inappropriate. (section 190).

ff . serious enough to warrant imprisonment, we 3.3 In the case of an offender whose 0 e~c~~~lit which the law so provides. Short terms of agree with the general framework as ~o e \gl I Y d would seldom justify the additional adult parQle are of little practi~a va u: ;: the arole service. The section therefore administrative burd~~ they woul~. Imdo~e 11 be at lea~ six months less than the term of the provides that any mIlllmum term IX~. ~ a ntel1ce is in the vast majority of cases reduced sentence. In view.of the extent to w .IC . a !eeffective scope for parole in the case of short by remissions, it IS clear that there IS httl

f· . 'mum term if the sentence is for twelve

Th d' etion of the Court to IX a mml I b f sentences. e I.scr. b ffi' t to provide for any case where paro e may e 0 months or more IS lIkely to e su Clen . value.

of the roviso which permits the Court to refrain 314, We consider. h?wever that the te~s teJce is n~t less than two years, are unduly

..... ;from. f~ing a mmlm~m terll1: whereC~:rtS;~ ado t this course only if i~ ~onsiders t~~t 'the - restnctIve. The prOVISO permIts the dents of the ~ffender' render the fIxll;tg of a mmlmum

nature of the o~ence and th~ ant~ce ture of this ex ression has, accordmg to the Park~r term inaRpropnate. :rhe conJu~ctlV.e nathat unless the~ find on both grounds that parole IS Report, led some Judges ~o t e ~I~W term It is clear that either 'the nature of the inappropriate, they must fIX ; ~l1111;U~er' m~y in some cases lead to the conclusion that offence' or 'the antecedents 0 .t e 0 en. t and any doubt about this position should be provision for parole would be mabpr°fr~~':;tances, other than those referred t?, where removed. There may moreover e c Ie where the offender was a transIent who parole would be inappropriate; for hexamp ieased or where upon release a prisoner was planned to leave the State as soon as e was re , .,

, P . 'n Western Australia. 1979 at page 14. -10-.-R-e-po-rt-on---=-Pa-r-=ole, Prison Accommodation a~d Leave from nson 1 ..

'22

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likely to be deported or to be extradited to serve sentences or face charges elsewhere. It is not possible to define exhaustively the circumstances which in a particular case would make parole inappropriate but the Court should not be precluded from considering such circumstances.

3.5 We therefore recommend that the proviso to section 190 of the Act be amended to provide that the Court shall not be required to fix a minimum term if it considers that either alone or in combination:

(a) the nature of the offence, (b) the antecedents of the offender, and (c) any other relevant circumstance,

renders the fixing of a minimum term inappropriate.

B. Standard Statutory Non-pa!~ole Periods

3.6 In some jurisdictions, the legislation relative to parole either provides that the non-parole period or minimum term shall be a fixed proportion of the sentence or requires that a minimum term to be fixed by the Court shall be not less than a certain proportion of the sentence. In some cases the Court is permitted to depart from the proportion so fixed if it states its reasons for so doing. In our opinion any legislation to fix the length of a minimum term by reference to a proportion of the sentence would be undesirable in Victoria. The sentences affected would vary from as short as twelve months to as long as twenty years or more, and what might be areasonable non-parole proportion of a sentence in the lower range might warrant quite serious criticism if applied to a sentence in the higher range. Even if the Court were given a discretion to depart from the proportion so fixed, a statutory proportion which in terms applied to sentences of any length .could hardly be departed from on the ground that it was inappropriate for a sentence of the length in fact imposed. c:c--:;." '

3.7 Presumably such a provision is intended to achieve two results, firstly, to promote consistency in the fixing of minimum terms, and secondly, to guard against the adoption of a course which appears to be not uncommon in some jurisdictions, namely, the imposition of a head sentence which is far longer than the circumstances in the particular case would seem to warrant and then the fixing of a minimum term which is so much shorter than the head sentence that it is impossible to find any reasonable relationship between the two. Insofar as the first of these objectives is intended, it is a mistake to confuse uniformity with consistency. Consistency involves a due weighing up of all the circumstances, beth similar and dissimilar, which may exist in a number of cases. The application to all such cases of a uniform rule which has no regard to the dissimilarities which may exist, is much more likely to create inconsistency. We think the provision would have much more value in regard to the second objective, and if in Victoria experience had shown a tendency on the part of the Courts to develop what we regard as the objectionable practice to which we have referred, we might well have favored some statutory curb upon such tendency. We have already referred to the firm line which the Full Court in Victoria has laid down as to the imposition of a head sentence which is appropriate to the actual circumstances of the crime committed and of the offender who committed it, (para. 2.7 supra), and the analysis which was made of minimum terms as a proportion of the terms of imprisonment imposed (para. 2.8 supra) showed no evidence of such a tendency developing.

3.8 In these circumstances we consider that thc.statutory prescription of a minimum term is unnecessary and could lead to unsatisfactory results. The Court has the opportunity to be fully informed as to the precise circumstances of the offence and of the offender. It has

23

determined the sentence which it is appropriate to impose, and its determination of the minimum period which the offender will be required to serve in custody under that sentence is far more likely to be appropriate in the circumstances than any period which is determined by the application of an arbitrary rule. If it errs, its decision is subject to appeal by either the offender or the Crown.

3.9 In order to illustrate the different problems which may exist in different jurisdictions, we conclude this sectkm with an interesting comparison between certain New South Wales statistics quoted in the Muir Reportll and Victorian statistics derived from the analysis set out in Schedule Three. Both sets of statistics relate to the non-parole or minimum term as a percentage of the sentence imposed. The New South Wales statistics relate to t~e n?n­parole periods of prisoners released on parole betwe~n 1974 and 1977.' and the ,vIctonan statistics to the minimum terms of prisoners sentenced m 1980, but despIte these dIfferences and the relatively short term covered by the ~ictorial! figures, the statistics. appear to indicate a marked difference during the respectIve pen ods between the practices of the Courts in the two States. In New South Wales in 1977, the percentage of prisoners so released whose non-parole period was less than 30% of the sentence was 31.4 per cent; in Victoria the percentage of prisoners sentenced with a similar mi.nimum term was 3'.1 per cent. In New South Wales, the percentage of prisoners released wIth a non-parole pe.nod of less than 50% of the sentence was 76 per cent; in Victoria the percentage of pnson~rs sentenced with a similar minimum term was 16.6 per cent. One of the factors WhICh influenced the Muir Committee to recommend a statutory non-parole period (albeit with a discretion in the Court to specify a non-parole period of greater or less duration). was the problem flowing from the disparity between aggregate sentence .and non-parole penoe!. The figures in Victoria indicate that in this State that problem IS greatly reduced.

C. Combined Effect of Parole and Remissions

3.10 By section 203 of the Act, the Governor in Council is empowered to make regulations for or with respect to (inter alia) the mitigation .or re~i~sion of a~y ~entence of imprisonment (including any sentence in respect of Wh.ICh a mInImUm term IS fIxed and t~e minimum term thereof) as an incentive to or reward eIther for good conduct or f~r specI~1 industry in the performance of any work or lab~H~r. allotted to an offen.der whIlst h~ IS imprisoned under such sentence. In Part XIII of DIvI~Ion III of the Re~ulatIOns, Regul~tIon 97D provides that in respect of any sentence, inc1udmg any sentence m respect of WhICh a minimum term is fixed and the minimum term thereof, the Director-General may grant remission not exceeding fifteen days for each complete calendar month of the sentence actually served, with pro rata remission for portion of a calendar month.

3.11 As section 203 states, the purpose of the grant of remissions is to act as an incentive to or reward for good conduct or special industry whilst the prisoner is imprisoned under his sentence. They are an obvious aid to prisoner management and it is fair that the prisoner should be rewarded for such good conduct or special industry. In relation to the sentence under which he has been imprisoned, whether or not he was made eligible for parole under that sentence, remissions in our opinion should continue to be available, based upon his conduct whilst imprisoned. The problem which arises is whether they should be available upon the minim'lm term and, if so, at what rate.

3.12 When a prisoner has been made eligible for parole, the hope of gaining such parole ~s early as possible should itself operate as an incentive to good co.nduct. W~ have alrea?y sa~d that in practice the Parole Board' does not attach much weight to pn~on behavIOur m determining whether a prisoner should be released upon parole, but that IS largely because

11. Report of the Committee Appointed to Review the Parole of Prisoners Act (N.S.W.) 1979.

24

rem~ss~ons are at the present t.ime granted upon minimum terms and the failure to gain such re~l1ISSIOnS .as a result o~ u.nsattsfactory behaviour will in itself delay the date upon which the pnsoner Will become elIgIble for parole. To further delay parole because of such behaviour would appear to ~e ~ ~econd penalty exacted for the same fault. If however remissions were nO.t grant.ed upon mmlmum ter~s, !~is cons~deration would have less weight and conduct in pnson mIght assume ~ great~r .sIgnIfICanCe m determining the date of release upon parole. On t~e other h~nd, If remiSSIons were granted only upon the head sentence, the only benefI~ that a pnsoner who was released upon parole would gain from them would be reduct~~n of ~IS parole period or, if his parole was cancelled, a reduction of the sentenc: that stilI rem~med to be served. To a prisoner who was still serving a minimum period and ~ho was hopmg for parole, that ben~fit wo.uld appear to be remote and would add very lIttle to t~e hope. of early .r~lease .as an m~entIve to good conduct. On the whole we consider that th.e ImmedIa.te b~nefI.t .whICh a pnsoner serving a minimum period would readily ~ppre~late of havmg hIS I?InImum. term redu~ed by some remissions would be a material mce~t~ve tohgOod behavIOur dunng that mmimum term and some provision for such remISSIons s ould be retained.

3.13 The prese~t scale of re~issions does however warrant careful examination. Under the presen~/egulatIOns. th7 maxlm~m r~~issions which may be granted to a prisoner, both upon mS sentence , .. ,. upon hIS mlmmum term, amount to one-third of the periods pr?nounced by the Court. As t~ey are granted in relation to conduct while in prison, a pnsoner does not of.c~urse contmue !O earn them upon his sentence whilst he is released upo~ l?arole, and thIS IS a '!latter WhIch we will subsequently discuss. As to the scale of remISS!OnS on the sentence Itself, however, ~e co~sider that while it is generous it is not exceSSIve. It has over the years been progreSSIvely mcreased to its present size, probably in part .because of the concern of hard pressed prison administrators who are anxious to restr!ct the gr?wth of prison popUlations and because of the pressure exerted by critics who consIder that m gener~1 the ~entences imposed by Courts are longer than are necessary to safeguard the comI?u~Ity. !t IS n?t however. significantly out of line with the scale applied in ~ l!u~ber o~ other JunsdiCtIons; It has been m force in Victoria for a number of years' and as It IS. ImpOSSIble .to. det~rmine on objective grounds the scale which would both prod~ce the optImum benefIt m pnsoner management and also not unduly prejudice community safety we see no sound reason to alter it. '

3.14 In relation to minimum terms however, the application of the same generous rate of remissions does create a problem. We have already referred (in para. 2.41) to the possibility of adverse public reaction when a prisoner, by the combined effect of parole and remissions, is released a considerable time before the length of the sentence which the Court has considered appropriate to the offence has elapsed. The length of that time will of course materially depend upon the margin which the Court itself has fixed between the minimum term and the sentence pronounced, but the greater the remissions allowed on the minimum term, the greater the discrepancy will appear to be between the sentence pronounced and the time the prisoner is requin~d to be kept in custody. There is however at least one practical advantage which results from the same rate of remissions being appJied to both sentence and minimum term. A detailed examination of the sentences imposed in Victoria during the period covered by the analysis in Schedule Three, showed that in more than one third of the cases, the minimum term fixed was at least two-thirds of the effective sentence imposed. The maximum remissions available on the effective sentence would re?uce its length by one-thi.rd. Therefore in these cases the sentence imposed upon a pnsoner who had been granted such remissions would itself have expired either at or before the ti~e ~e had complete? ~he service of the minimum term fixed by the Court. The grant of remISSIons upon the mInImUm term at the same rate as those available on the sentence prevents the occurrence of such anomalies.

25

3.15 Despite the danger which exists of an adverse pubiic reacti~n ~o the apparent leni~ncy extended to a prisoner by the combined effect of pa~ole and remISSIOns, we. d<;> not co~sIder that at the present time and under the present cIrcumstances, the remIs.sIOllS avaIlable eith~r upon the sentence or the minimum term sho~ld ~e reduced. The ruhngs of the F.ull Court as to the principles to be applied in the deter~matIOn of the sentence ~nd t~e prac~Ice of the Courts in Victoria to fix minimum terms WhICh are g~nerally ~u.ch .hI~her m relatIOn to the sentences imposed than those which we hav~ noted ~n o~h~r JunsdiCtIons, b<;>th.t~nd to limit the degree to' which any such adverse publIc reactIOn IS hkely to assume SI~~IfIcnt proportions. Moreover, the present scale of remissions upon both sentenc~ and mI~lI~lUm term has existed for a number of years, and to remove or to reduce subst~~tIalIy ~ pnvilege which has existed for some time, in the absence of any new factor ansmg whI~h would justify that course, wou~d be bo~~d to generate a ~i~~ level of resentmen.t and dIscontent among prisoners. Even If the pnvilege should not Imt1~lly .ha~: been granted, we know of no new factor which could now be relied upon to Justify itS removal.

D. Supervision During Parole

3.16 By section 195(3) of the Act, a person who is released?n parole ,by ?rder of.the Adult Parole Board shall during the period from his release until the eXpiratI~~ of hIS term of imprisonment (which is called th~'parole period') be under t~e sup.ervlsion <;>f a parole officer. In this section of the Report we deal with certain consIderatIOlls relatl~e to such supervision, insofar as they apply to the ordinary case where a Court under SectIOn 190 of the Act has made a prisoner eligible for release upon parole.

3.17 The supervision which the Act directs is obviously desirable, both to enable the B~a~d to be informed of any conduct by the par~lee which eith~r breaches ~is par~le or places It m jeopardy, and to assist the parolee by gUidance and adYIce. Th~ deSIrable mtensity of such supervision will no doubt vary in different cases, parbcularl~ m th~ later stages of .a.long parole, but unless supe~ision is mai'!tai,!ed to the de~:ee desI~a.b~e m each cas.e, effICIency of the parole service WIll suffer and It wIll attract leg~tlmate cnticism. T~e mamtenance of adequate supervision depends not only upon the quahty of the parole officers but also upon the size of the case load which they are required to carry. That case load depe~ds upon the number of parole officers available, and is greatly ~ncreas~d at the present h~e because parole officers are also required to act as probatIOn offIcers under the Cnmes Act.

3.18 The supervision exercised over probati~ners and, to a .l~s~er ~egr~e, t.hat exercised over parolees, has for some time been the subject ~f ~trong cnbcIs~ I~ Victona. We do not intend to embark upon an examination of the valIdIty of such cnticIsm, but there c~n be little doubt that insofar as it is justified, it largely results from a shortage of personnell,! the parole and probation staff of the Department. The Government must of course Itself decide having regard to the number of competing claims which have to be met fro~ the funds ~vailable, the extent to which additional finance can be allotted to a~y par~Icul.ar service. We will merely observe that an efficient probation and parole ~e~Ice, WIth ~ts potentiality to reduce the, su.bstantial financial. bur~en. ,of provIdmg custodIal accommodation for offenders, IS lIkely to be economIcally justifIable. There are ho~ev~r certain measures which we have considered to alleviate the shortage of staff and to assist m making a desirable degree of supervision practicable.

3.19 The first of these measures relates to the use of honorary probation and parole officers. Before the introduction of the Penal Reform Act 1956, the Courts made considerable use of honorary probation officers to supervise offenders who ha~ been relt~ased upon common law bonds or otherwise. With the al.tered,penal stl'Uc~ure WhICh was introduced by that Act and l.a~er le~islat!on, ~ body o~ stII?endiary probab~m and parole officers was established. PrOVISIon still eXIsted m the legIslatIon for the appomtment by the

26

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Governor in Counc~l of honorary p~obation officers (s~e:Crimes Act 1958, sec. 507(2» but und~r the ~ommumty ~elfare Ser~Ices Act 1970, proVISion only exists for the appointment of StIpen?Iary parole offIcers. ,(sectIOn 189(2». A trained body of stipendiary officers is in ~eneral lIkely to be better eqUIpped to de~l.with th~ problems of parole and probation, but If the State can not afford to employ suffICIent offIcers to enable both services to function effici.ently, an. ~pportunity to augment the service by the use of honorary officers should not, m ~ur opmIOn, be neglec.ted. I~ general, it is probable that honorary officers would be more SUItable to act as probatIOn officers, particularly for young offenders than they would be to act as parole o~ficers: and a ~reater use of them for the former purp~se would reduce the c~se load on stIpendiary offIcers. If however a satisfactory relationship has been establIshed between an offender and a probation officer, and the offender after a subse9uent co~viction, is eventl!ally t~ be released on parole, there is often an adv~ntage to be gamed by hIS f?rmer J?robatIOn offIcer b~i~g appointed as his parole officer. In general therefore, probatIOn offIcers should be elIgIble for appointment as parole officers.

3,20 We therefore recommend:

(a) that the legislati~n be ~mended to enable honorary parole officers, as well as honorary probatLOn officers, to be appointed by the Governor in Council; and

(b) that greater use b: made ?y the Department of Community Welfare Services of both honorary probatLOn officers and honorary parole officers.

3.21 A further propos~l considered related to the length of the period of supervision. In February 1981, the DIrector-General referred to the Committee a proposal for which support had been given at a meeting of Correctional Administrators and which was ex~ressed as follows:- 'that a parole disposition could be discharged if the Parole Board behe.ved that a parolee had made a sa~isf~ctory adjus~~ent and that supervision or the legal reqUirements wer~ no longer appropnate . The Admmistrators were particularly concerned about parolees WIth very long parole periods, during which parole could constitute a su~stantial psychological burden and during the whole of which they could face quite senous consequences as the result of even a minor infringement.

3.22 The ,Proposal raised two aspects i.e. (a) a relaxation of the supervisory requirements of the legIslatIOn or of the parole order made by the Board and (b) a defacto remission of the sentence from the time that the parole disposition was discharged.

3.23 The Committee considered that it is and should be the duty of the Parole Board to implement the sentence imposed by the Court and not to vary that sentence. If the sentence is to be varied, it should only be done by the Governor in Council in the exercise of the R~yal prerogative of merc?,' Ev~n if a p~rolee app.eared to have made a satisfactory adjustment, some value mIght stIll be denved, partIcularly from the point of view of deterrence, by his remaining upon parole during the remainder of his sentence. In the opinion of the Committee, the exercise of the Royal prerogative to remit the balance of his sentence sho~dd only be considered in very special circumstances e.g. upon the recommendatIOn of the Parole Board when the Board is satisfied that the parolee has made a satisfactory adjustment and that his continuance on parole is likely to have substantial detrimental effects upon him either psychologicaly or in an unreasonable restriction of his future freedom of movement.

3.24 The question of the extent of supervision during a long period of parole is however a matter for the Parole Board to determine. The Director-General informed the Committee that the fram~work of parole supervision ha? already been revised because of the shortage ~f personnel m the Department, and that pnsoners are now graded in terms of community ns~, ?nly those w~o were d~emed to req.uire close supervision being so supervised. The vanatton of superVIsory reqUirements dunng a long period of parole is already within the power of the Board under section 197(1)(a) of the Act and as long as some measure of

27

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.. ired in the order of the Board, the provisions of supervision by a parole offIcer IS req~ d ·th The Board is the appropnate body t? section 195(3) of the Act ar~ .co~p I~ br\ . m time to time in particular cases, (I,nd as ~t determine the degree of supervIsIon eSlfad~. ro by us on this aspect of the proposal IS has the power to do so, no recommen a Ion

necessary. d h proposal raised by the Correctional

3.25 We therefore reco~mend, in regar tOh:t.e

Administrators for the discharge of parole, t . h Ld I be effected by the . h ·mposed by a Court s ou on y JJ'

(a) any variati~n m t e ~e'!tence l . e of the Royal prerogative of mercy; and. Governor m Counczl m the ex.~rclS . h rea risoner from parole and to re1mt

(b) that the exercise?f such preroga~~e t~ d~~ c~!side~ed in very special circU1;ZS!anCes, . the balance of hlS sentence s~ou 1 ~~ ~arole Board when the Board is satlsfled th~t

e.g. upon the recommend~tlOn 0 t .ustment and that his continuance on par~le lS the parolee has made ~ satlsf~ctory ~d~ t upon him either psychologically or m an likely to have substan~zal detrt"!'enta e e; s d 1 movement. unreasonable restrictwn of his future J ree om 0

E. Credit for Time on Parole if Parole Cancelled .. I . cancelled either automaticaily by convIct~on or

3.26 Under the present law, when ~ar? etto serve the whole of the unexpired portion ~f by order of the Board, the par.olee IS 1mb e Ie He does not however lose the benefIt his sentence as at the date of hIS l:elease u~onh~~~o ained while in prison prior to release or of any remissions of sentence WhIC~ he ~ h,. gle It has been suggested that the law which he may gain afte~ cancellatI~n 0 rl l~l::~a~ spent a considerable time. on parole operates harshly on a pn~oner, particula y dit should be given to him on hIS sentence without proven misbehaVIOur, and that some cre in respect of the time spent on parole.

. ~ ole with the consequent liability to serve . the 3 27 The danger of cancellatlOn of par. d t hl·ch the system of parole prOVides

. . 01 is the mam eterren w . f remainder of the sentence m ga. 1 A . gnificant reduction in the effectIveness 0

against unsatisfactory cond~ct by ala~o .:~. th~~!~ue of the system as an acceptable 'penal such a deterrent would senously Imlm I t llow for hard cases could however m our

·b·l· . the present aw 0 aft measure. Some flexi I1ty m... . duction in deterrence. The Board ~ course a opinion be introduced wIthout any ser;ous re . soner again on parole at any time after a the present time has the power to re e~se t t~r~n limitations resulting from any f~rth~r former parole has been cancelled (subJec.. the date when it will again release hIm, It sentence imposed upon him) a.nd in determu:nng

the eriod he was on parole. Whenever .he will no doubt have regard t<;> hIS. condu~~dl~~~~: to s~rve the balance of the sentenc~ WhICh is reparoled however, he WIll shll rem h I th of his sentence is concerned he WIll have then remains unserved, and as far as t. e e~g·n an length of time whilst released upon gained no benefit from his good ~eha~~o~rhe t~~urd b~ gi;en any such benefit would be by his former parole. The only way m w IC some remission of the sentence.

1 f the time spent by a prisoner on parole between 3.28 It has been suggeste~ t~at the who ~~ which cons~ituted a breach of his parole should his release and the commISSIon of any ad' . ... . te·nce Where a prisoner successfully

J: h t· served un er tne sen· . ·tt· count as part 01 t e lme lIed by the Board and WIthout comml mg . 1· h t·t having been cance . . d d completes hIS paro e WIt .ou 1 . llation the time spent on parole IS regar e as

an offence which results m automatic .cance f t? 196 of the Act. It does not however h t ee by VIrtue 0 sec Ion . ·1 I

time served under t . e sen en '. I t h· s parole satisfactorily should be Slm} ar Y follow that a prisoner who has f~lled to c~~p e c~n~iderably reduce the effectiveness of the rewarded, and to do so would m our oplmon present sanction against a breach of parole.

28

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3.29 A majority of the Committee does not consider it is desirable to endeavour to prescribe a formula by which the credit to be received by the prisoner can be calculated. There would be little justification for any credit to be given to a parolee who had offended shortly after his parole commenced, and a parolee is not under the same degree of supervision as a prisoner is, which enables the conduct of the latter to be regularly assessed for the purpose of the grant of remissions. In our opinion, wherever parole is cancelled, the Parole Board should consider whether having regard to the time spent on parole and the parolee's conduct during that period, any reduction in the time yet to be served under the sentence is warranted. As we have already said in the previous section of this Report (para. 3.23) we do not consider that the Board itself should have the power to vary the sentence imposed by the Court. That is a matter the responsibility for which should rest with the Executive Council, but the Board could properly recommend to the Governor that some remission of the sentence should be granted.

3.30 We therefore recommend that when parole is cancelled, either by the order of the Board or automatically by conviction, the Parole Board, having regard to the time spent on parole and the parolee's conduct during that period, should have power to recommend to the Governor in Council that the prisoner be granted some remission of his sentence in respect of that period.

F. Parole During Life Sentence

3.31 Until the abolition of capital punishment in 1975, life sentences had played very little part in criminal administration in Victoria for very many years. The Executive Council had occasionally commuted death sentences to sentences of imprisonment for life but the Courts had had no power to impose such sentences. The Crimes (Capital Offences) Act 1975 however subshtuted for the penalty of death the mandatory penalty of imprisonment for the term of the offender's natural life in the case of a !Jerson convicted of treason or murder and since the Act came into force, many persons have been so sentenced. In R v. SCHULTZ (l976 VR 325) the Full Court held that the then provisions ofthe Social Welfare Act 1970 relating to the fixing of a minimum term did not apply to a sentence of imprisonment for the term of a person's natural life. The question of the release of a prisoner who is so sentenced therefore under the present law rests entirely upon executive action in the exercise of the Royal prerogative of mercy.

3.32 The prescription of a mandatory life sentence for the crimes of murder and treason and the consequent removal from the Court to the Executive of the responsibility to determine in each case the appropriate term of imprisonment which the offender should suffer is a matter which requires examination. At the present time, however, we are considering the life sentence in the context of parole, and as it is probable that, even if there is some change eventually in the present law and the life sentence is no longer made mandatory for the crimes of murder and treason, it will remain as the maximum sentence for these crimes, it is appropriate that we should at this stage express our views upon the application of the parole system to it.

3.33 Wilen the prescribed penalty for murder and treason was death, the exercise of the prerogative of mercy was accompanied by a power of the Executive to substitute a sentence of imprisonment for the sentence of death. Section 496 of the Crimes Act authorised the Governor, in all cases in which he was authorised on behalf of Her Majesty to extend mercy Jo any offender under sentence of death, to do so upon condition that such offender be imprisoned for such term as he thought fit and he might also, if he thought fit, fix a minimum term during which the offender should not be eligible to be released on parole.

-§ection 497 provided for the conditions so imposed to be converted to the equivalent of a sentence of the Court. In such cases unless the death sentence was commuted to a sentence

29

"

of life imprisonment, there was no difficulty created in the application of the parole system to the substituted sentence. It had been converted to the equivalent of a sentence of the Court; the prisoner thereafter was sentenced to a fixed term of imprisonment, and, if a minimum term had been fixed, he was eligible for parole after he had served the minimum term, in the same way as any other prisoner so sentenced.

3.34 Both section 496 and section 497 of the Crimes Act were however repealed when the Act was amended to ,substitute imprisonment for life for the penalty of death, and no comparable power to convert a sentence of imprisonment for lif~ into a sen~ence of imprisonment for a term of years was enacted. The Royal prerogatIve of mercy IS not of course affected (see section 505 of the Crimes Act) and as we have already said the prisoner sentenced to life imprisonment may be released in the exercise of such prerogative. If he is so released however he still remains subject to the sentence of imprisonment for life which has been pronounced upon him. It is only by virtue of that sentence that any authority would exist for him to be brought back into and held in custody should it be considered th~t such action was desirable, and he would remain subject to that sentence for the rest of hIS natural Hfe, unless at some stage the balance of the sentence then remaining were remitted by executive action.

3.35 By section 500 of the Crimes Act, the Governor in all cases in which h~ is a~thorised on behalf of Her Majesty to extend mercy to any person under sentence of Impnsonment may do so by directing that the prisoner be released-

(a) on condition of his entering into a recognizance before a justice as thereinafter mentioned; or

(b) on parole pursuant and subject to the provisions of the Community Welfare Services Act 1970.

3.36 In terms, section 500 of the Crimes Act applies to any person under sentence of imprisonment and therefore would apply to any person under sentence of imprisonment for life. To adopt the first procedure referred to in the section, i.e. to release him upon a recognizance entered into before a justice, would appear to be appropriate only to cases where the time remaining to be served under the sentence was comparatively short, and would be quite inappropriate for a prisoner under a life sentence, particularly in view of the powers which are conferred by later sections upon Magistrates' Courts in the case of a prisoner who was so released. Those powers include a power to direct that a person who has failed to observe any of the conditions of his recognizance be committed to prison for the unexpired portion of his original term of imprisonment. The section does however enable the prisoner to be released upon parole pursuant and subject to the provisions of the Community Welfare Services Act and presumably it would be under this section that at the present time the parole system would be applied to a prisoner serving a life sentence. Although the legislation so empowers the Executive in the exercise of the Royal prerogative of mercy to release a life prisoner upon parole, there is no legislative provision which requires that the Executive should give consideration to this question or which regulates the procedure to be adopted when such consideration is to be given. A procedure to cope with this position has however in fact been approved by executive decision and applies at the present time. Under section 188(3)(b) of the Community Welfare Services Act 1970 the Minister has the power to require the Adult Parole Board to furnish a report and recommendation with respect to any prisoner for the time being undergoing a sentence of imprisonment. The approved procedure relies upon this power to initiate action by the Parole Board. The procedure is as follows: .

30

(a) The Adult Parole Board is to undertake an initial review of each case within twelve months of the imposition of the sentence. This review is to be made in consJlltation with, or on the basis of reports obtained from such persons as may be necessary.

(b) The purpose of the initial review is to enable the Board to fix a time when it will 'again review the case, and reviews thereafter take place at intervals of not longer than five years.

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( c) On the occasion of each review the Board will f . h recommend t' t th M' " urms a report and f nish adI~,~, 0 I e mIster, who may in his discretion, require the Board to

. ur ,an a IlOna report and recommendation at any time (d) ~~s~~m1 thecBoard eyentually recommends the release of the prisoner and the

miS er or ommumty Welfare Services concurs in the recommendation the Attorney- Gen~ral may ~ecommend to the Governor that, by the exercise of the

bRoyaI prer~gatIve, the pnsoner be released upon such terms and conditions as may e appropnate.

~lr~l!n o~~ri~~~~i~ns!~~e~~:Je~~ :~gi~lativ~ and exe.cutive r:rovision ~or the release upon 1 e Impnsonment IS unsatIsfactory. In several resp~cts-

(a) In the firs~ place, there is no adequate provision to enable the opinion of th Co t !O be o?tamed ~lp~n t~e question of the release of the prisoner. In our opini~n t~Is IS a senous omISSIOn In the case of a crime the sentence for which is mandator Ali~oU~h b?th murder and treason are crimes which are so serious that a senten%~ ole Imp~Ison~ent may be warranted, they are crimes in which the de ree of moral turpItude Involved may, vary substantiaIIy in different cases; murd~r for e~~~le, dmay ran~e, from ?elIberate cold blooded kiIIing in pursuit of entirely se ~s e~ s to a kIllIng WhICh results from compassion to the victim The t ObVIOUS ~ndepende~~ au~hori~y who has had the opportunity of asse~si~ ~ bot;t~~ aggravatIn~ and ~ll~Igatmg CIrcumstances in a particular case is the t~al 'ud e NormalI,Y m a cnmmal.case where the judge has the power to determi~e fh~ appropna~e sentence, hIS ass~s,sment of those circumstances is reflected b the sentence .Imposed and the ITHmmum term (if any) fixed by him but h y th sentence IS mandatory.and no minimum term can be fixed, that a~sessm:n~~~ no~ ~o :eflected .. I~ these. CIrcumstances the desirability of consultation with the Court

e ore a deCISl?n ~s nnportant as that of the release of a prisoner who has been sentenced to lI~e Impnsonment by Parliamentary direction is manifest

(b) A se~o~d unsatIsfactory fe~ture .of the ~resent position, arising from the fact that no ~I~Imum term can be fIxed m relatIOn to a life sentence, is that the ordinar re~Iss~ons ?f sentence which can be granted to a prisoner in respect of his conducr w I.e Impnsoned cannot be granted to a prisoner serving a life sentence The ObVlOU~I~ cannot .be granted upon the sentence itself, as by its ver nat~re irs length IS Indetermmate, and in the absence of a specified minimum ter~ there i~ no part of the sentence upon which they could operate

(c) A third unsati~factory featu~e of the pr~sent position i~, as we have pointed out abo,:e, that a lIfe sentence pnson~r who IS r~leased upon parole remains sub' ect to t~le hfe sentence for the rest o! hIS nat~ral hfe, irrespective of whatever miti1ating circums~a~ces may have been mvolved In the crime that he committed and th ' no prOVISIon to enable the period of his parole to be limited to a sp~cified t:~~I.S

~.38 In.relation to the first criticism of the present position to which we have adverted 't' mterestmg to note the provision which has been made in England to enable the 0 ini~~ ~~ the Court upon the re~ease of the prisoner to be obtained, When the death pinalt t murder was replaced In England by the penalty of life im risonm y or (Ab~lition of Death Penalty) Act of 1965, the Act provided that on ::t~:ci~he Murder con,vIcted ,of ?1urder to life imprisonment, the Court might at th~ same time !e~Ir:r~~~ penod WhICh It recommended to the Secretary of State as the minimum eriod which h ld .elap~e before the offender was released on license (section 1(2». The s!me Act b se~t'°u 2 req~llfed the Home Secretary to consult both the Lord Chief Justice and the triiI . d Ion'

f avadabl~) before. author~si~g release on license. When the 1965 Act was passed th~U p!~ ~~ :oard ?~d not eXIst, but It IS stated by the Advisory Council on the Penal System in its 1~78

eport. that the Home Secretary can release a life sentence prisoner only if he is

12'l~~rep~::~c~~;~entences of Imprisonment', Report of the Advisory Council on the Penal System, February

31

d d to do so by the Parole Board (though he is not bound to accept their recommendeatl'on) Any recommendation which the Court may make under section 1(2) is recommen· .' ff th E f ve In its Report o tional and the recommendation has no bmdmg e ect upon e xecu I . , t Ad' Council stated that the power of the Court to declare a recommended t ~. visorYriod before release had only been exercised in 8% of the tot~l nu~ber of mmll~lUt.m pef murder 13 In view of the statutory provision for consultatIOn 'WIth the ccnvlc Ions or· .' h f th ower to make a 'udiciary at the time of release and the inconSistency m t ~ ~se 0 e. p Jd

I t' at the tl'me of sentence of the recommended mlmmum penod before release$ ec ara lon, ., . 1(2) f th A t

the Advisory Council recommended the repeal of section 0 e c.

3.39 It is unlikely. nowadays that. any know.ledgea~le person would conte~plate that a prisoner sentenced to life imprisonment, unless he dIe~ unexpectedly, woul.d m fact spen11 the remainder of his life in prison. It is even more .unhkel~ that he w.ould m fa~t do so. There is however in Victoria no statutory system w~l~h pr~vldes for a tIme to be f~x~d w~en his release could be considered; there is no proVISion elthe~ statutory or admmlstrattv.e which requires the views of the sentencing Court to be c<?nsl~ered befo~e sl!ch release IS authorised; and there is no statutory procedur~ to proVide m appr<;>pnate cases that a sentence of life imprisonment could be converted mto a sentence for a fIXed term of years to enable a prisoner in such cases to be freed f~om the liability of recall t? prison during the whole of the remainder of his life. We recogmse that the Royal pre~ogat~ve?f m~rcy sho~l.d be freely exerciseable, and indeed under a system where a ~ent~nce of hfe. lmpnsonment IS

mandatory, whatever mitigating circumstances may eXist m a. particular. case,. the opportunity for its exercise is essential if a just ."nd hum.ane result. IS to be achle~ed ~n a.ll cases. But we consider that greater public conf~dence wIll b.e fe.lt m a ~y~tem of Jus~lce m which the Court is given a greater opportumty to exercise ItS tradlt~onal functIOn of determining the punishment appropriate for a particular offence than eXl~~s at the pr~se~t time. Under the system of parole, the implementation of part o.f that tradltton~l functIOn IS entrusted to the Parole Board. In our opinion, the proc~dure m the case of hfe s~ntences should approximate more closely to the procedure provld~d ~ene~ally for parole. mother criminal cases and while the very nature of a sentence for hfe lmpn~onment may mvolve a greater recourse to the Royal prerogative than other sentences m~olve, ~hat recourse should be limited to cases where the ordinary procedures cannot be sattsfactonly adopted to meet the problems which the life sentence raises.

3 40 We consider in the first place that in all cases w~ere a ~e~tence of life iIl1:prisonf:ll~nt;s . ed the Court should have the power to fIX a mmlmum term durmg W~IC t e p~no~mc h~uld not be eligible to be released upon parole. Such a recommendatl?n w~s ~a: ~r ~oth the Nagle Commission in New South 'Ya1es and t~e Mit~hell Co~mlt~ee m South Australia. The fixing of a minimum term prOVIdes a startmg pomt. at whlC~' I?d t~e normal course of sentencing procedur~,. consideration of :h~the~ th~. ~;I~~~~~:~~~ll th: released on parole can commence. In fIxmg such a term, t e our w I evidence in the particular case can make and indicate its own assessment;f t~e re~evan~~~f

miti atin or a ravating factors in the case. We do not sugg~s~ tea op~lon 0 e ~~ lish g rovfsion ~tich enables the Court to recommend ~ mimmum .pe~IOd to t~e Ex~cutiv~ for two reasons' firstly because such a recommendation has no bmdmg effect m law and we intend the fixi~g by the Court of ~ minimum per.iod to have the same legal effect in regard to parole upon a life sentence as It wouldh.a~e 1T.1 regard to a~y. other sen.te~c.e imposed by the Court; and secondly, because)he flxmg of such a mimmum peno IS

13. ibid. para. 257. . n rved by life sentence prisoners in Australia was published in 14. A very detailed researc~ of the ,tIme a~~~ y. se 10 y a substantially abridged version of which was published

july 1975 by the Australian Instttu~e? I nmIQ:n~ i976) pp 77-87. The research showed that although there in the A~st. & ~.~. Journal of hcnml IDO °tgy d shortest periods spent in custody by different prisoners, the was a WIde vanatton between t e onges an . average length of detention of life sentence male prisoners was thirteen years.

32

-~----- ----

... ~- ------ ----

~---- --------~- .-~-- . -

intended to facilitate a procedure for parole which can be implemented without the Executive necessarily taking any step to exercise the Royal prerogative of mercy. We do not however consider that the Court should be bound to fix such a minimum term in all cases of life imprisonment. Under the proviso contained in section 190(1) of the Act, the Court is not now required to fix a minimum term in the case of any other sentence if upon certain grounds it considers the fixing of a minimum term is inappropriate. We have already recommended that these grounds should be extended (see para. 3.5 supra) and whether or not that recommendation is accepted in regard to sentences other than those of life imprisonment, it i~ clear that in the case of crimes which are serious enough to incur the lia?i~ity to a life sentence, there may be circumstances in a particular case which in the opmIOn of the Court may render inappropriate the fixing of a minimum term at the date of sentencing. One such circumstance may well be the inability of the Court at the time of sentencing to predict with any degree of confidence whether and if so when the release of the prisoner would not constitute an unacceptable danger to the community. The fear has sometimes been expressed that if the Court were given the power to fix minimum terms in cases of murder and treason, the term so fixed may sometimes be far longer or far shorter than ~he circumstances would eyentually warrant. Insofar as any such error was apparent at the tIme of sentence, the ordmary procedure of appeal, by either the prisoner or the Attorney-General, would of course be available to correct it. Insofar as subsequent events or knowledge may show that an error was made, a minimum term which was too long would not prevent the exercise of the Royal prerogative to release the prisoner on parole under section 500 of the Crimes Act, and the time of release of the prisoner could be determined in precisely the same way as it is now determined; and a minimum term which was too short would not automatically result in the release of the prisoner when the term expired, as the Parole Board would still have to decide whether parole should be granted. In making that decision the Board would be able to take into account any such subsequent events or knowledge. One further conSequence of a minimum term being fixed by the Court would be that the prisoner would be eligible for the normal remissions available upon minimum terms as an inducement to and reward for satisfactory behaviour during his imprisonment.

3.41 Where the Court fixes a minimum term, we consider that, as in the case of other sentences, the Parole Board should have the power to release the prisoner upon parole on or after the expiration of the minimum term, and that the normal provisions as to parole would then operate. Before deciding to release the prisoner, the Board would of course consider the extent of any danger to the community which his release would involve. Where the Court has not fixed a minimum term, the release of the prisoner upon parole would depend, as at the present time, upon a direction by the Governor in Council (see section 500 of the Crimes Act, para. 3.35)above}. In such cases the procedure which has already been approved by executive decision, modified to incorporate c')nsultation with the sentencing Court in a manner similar to that laid down in England, should in our opinion be adopted. Such consultation is in our opinion highly desirable in cases where the view of the Court as to the minimum term to be served in custody by the particular prisoner has not been expressed by the fixing of such a minimum term by the Court. We do not however consider it necessary that, as in England, the consultation should be with both the trial judge and the Chief Justice. Its purpose will in our opinion be adequately achieved if it is provided that the consultation should be with the trial judge, if available, but, if he is not available, with the Chief Justice. Such a procedure does not purport to limit the power to exercise the Royal prerogative, as whatever the nature of the recommendation or advice which may be received from either the sentencing Court or the Parole Board under it, the Executive would still be free to exercise such prerogative. It would however ensure that, in cases which had not already been provided for by the fixing of a minimum term by the Court, there would be a periodic review of the question of parole and that consideration had been given t9 all relevant factors before a decision was made.

33

. . I sed upon parole either by the 3.42 The problem would stillbrehaI~. that~o~ r:;;~~~e~~~:r~or would be subject to the life order of the Parole Board or Y t. e Irec ~ ve his arole cancelled at any time during the sentence. impose~ l~~d ~~uI~'~~iJ~~b~o~~d :emain,\vhatever mitigating circuI?stances may rest of hIS natura 1 e: a I . d however minor any breach of hIS parole may have existed in the cnme he ~~m~tted, a~ to alter the sentence itself. We have alrea~y be. It could only be rem?ve y a pO~~st"'d under the Crimes Act for the Governor In referred to the ~ower WhICh forme~ly . '" ent for a sentence of death (see para's. 3.33 Council to SubstItute a sentenc~ of I~p~on~ rerogative the Executive could doubtless and 3.34 above). ~lthou~h bunt~r ~ e t 01: i~ doubtful ~hether the Executive, without remit a sentence .Impose .y e our, t of im risonment upon a prisoner whose legislative authonty, coul? Imp(osel~ ~e~~~LTZ (1976 V.R. 325). At least such doubt sentence had been so remItted ~ee .: I f on Where a life sentence prisoner has been should be removed by appropnate legIS a \ '. ther by the Court and the Parole Board in considered suitable to ~e.released upo~~:r~:~:1 fixed or by the Executive, upon t~e the case where a mimmum term d after consultation with the sentencing Court, In recommendation of the. P~role Board an t fixed there are bound to be cases where it will the case where such a mimmum term ~as no ? n u on such arole for an indeterminate be undesirable that he s:ho.ulg ~ reqUl~~d t~{:~:~re that legislItion similar in effect to that and possibly very l?ng

dP.eno . d e

t c~~~ de:ath sentence should be enacted. Such legislation

which formerly eXIste In regar 0 sentence of life imprisonment was directed should provide that whenever a perso~ UI~er a nor under section 500 of the Crimes Act or to be released upon parole, either by. e 19~ve;the Community Welfare Services Act 1970, by the Adult Pa~ole B?ard under sectIOn ~ risonment for a determinate period should the Governor mIght dIrect that a se.ntence of I Parole eriod in respect of the prisoner be substituted for the lif~ sentence;~pose:, an~ t~: 1ad orFginallY been imposed upon the should be ca~cu~at~d as If such su IStItu~ ors~~~ substituted sentence should also be ~he prisoner. It IS deSIrable t~at tbhe henp

gt I Board and of consultation with the sentencIng subject of a recommendatIOn y t e aro e Court.

3 43 We therefore recommend: d . . d' risonment for life, the Court be empowere

(1) that when an offender ~s sente~~e to lmp during which the offender shall not be but not required to fo;; a mlmmum term eligible to be released on. parole; a ''linimum term, the Adult Parole Board be

(2) that when the Court h?s f~x;f ~~~~e Act to release the prisoner on parole after the

34

empowered under sectLOn OJ minimum term has elapsed; . d h a minimum term, the Minister for

(3) that when the Court ha~ nothfrzewit~r~ twelve months of the imposition of the Community ¥(elfare Servlces ~r:le Board under section 188(3)(b) of the Act to sentence reqUlre the Adult Pd' 'th respect to the prisoner, and thereafter. to furnish a report and recommen atLOn ;~tions with respect to him at intervals whlch furnish further reports ~nd reco;nme; . but which shall not be greater than the Board may from tlme to tlme etermme .

five-yearly; . arole under sub- paragraph (2) above, or (4) that before releasing the pns~ne~ ~n dP der sub-paragraph (3) that he be released

recommending in any repOr~J,;;nLS de h u;; consider in addition to any other relevant upon parole, the Adult Paro e oar hS a munity 'or to himself which the release of

h t t o.f any danger to t e com matters, t e ex en 'j b l'k I to involve' the prisoner on parole r;ay 1 e Bl e ~ either dete:mines to release the prisoner on

(5) that whenever the Adult aro e oar mends in any report furnished under parole under sub-paragraph (~) or

d recom parole it shall report to the Minister its

sub-paragraph (3) th~t he b1e re ~a~: [' uP~:ring which such parole, if not cancelled, opinion as to the destrable engt OJ tme should continue; I

(6) that before any prisoner who has been sentenced to life imprisonment is released upon parole under section 500 of the Crimes Act 1958, the trial judge, or if he is not available the Chief Justice, shall be consulted both upon the question of such release and upon the question of the desirable length of time during which such parole, if not cancelled, should continue;

(7) that legislation be enacted to authorise the Governor in Council, in all cases where a prisoner who has been sentenced to life imprisonment is released upon parole, to substitute for the sentence of life imprisonment, a sentence of imprisonment for a determinate period to enable the length of the parole period to be determined.

3.44 It is important to point out that our recommendations relate to the application of parole to the life sentence, whenever the latter sentence is imposed. Vie have necessarily dealt with the question of parole on the basis of the present law under "vhich a life sentence is the mandatory sentence for murder and treason, but the fact that we have so dealt with it is not to be misconstrued as an approval by us of that law. Whether or not the life sentence should continue to be mandatory is a question which raises important aspects which go far beyond the question of the proper provision for parole under such a sentence and which merit separate consideration. The recent issue by the Victorian Law Reform Commissioner of Report number 12 upon 'Provocation and Diminished Responsibility as Defences to Murder' and the recommendation which is made in that report that life imprisonment should be the maximum penalty for manslaughter raises some of those aspects. Although the present mandatory nature of the life sentence in our opinion adds force to the proposals which we have made for parole, those proposals are not dependent upon the life sentence continuing to be mandatory and it would be unfortunate if their implementation was delayed until a decision was eventually made as to whether it should so continue. We have consequently not embarked upon a discussion of this important question at this stage, and consider that our proposals should be put into immediate effect.

3.45 Some legislative provision will clearly be necessary to give effect to some of our proposals, although other aspects of the recommended procedure could be implemented under the present law. We have not endeavoured to frame any necessary statutory amendments as, if our proposals are approved, it is obviously more appropriate that the task should be undertaken by Parliamentary Counsel. We consider however that the procedure in regard to parole upon life sentences might be more readily understood if, insofar as it is practicable to do so without undue repetition, it were set out in a set of provisions specifically designed for that pUlpose. We recommend accordingly.

G. Guidelines for Parole

3.46 At the present time under the law of Victoria, the granting of parole to any offender sentenced to a term of imprisonment of not less than twelve months rests upon discretionary decisions. In the first place, the sentencing Court decides whether the offender will be eligible for parole and, if so, the length of the minimum term to be first served. The only statutory requirements which restrict or guide the discretion of the Court are that any minimum term fixed shall be at least six months less than the term of the sentence and that, if the term of the sentence is not less than two years, the Court shall fix a minimum term unless it considers that the nature of the offence and the antecedents of the offender render the fixing of such a term inappropriate. In the second place, when the Court has decided that an offender will be eligible for parole, the Adult Parole Board may in its discretion direct that he be released on parole at a time which it specifies and may in its discretion cancel the parole. Its jurisdiction to release him is of course, limited to the period during which he is eligible for parole, i.e., after the minimum term fixed by the Court has expired.

3.47 It has been frequently proposed that what are called "guidelines" should be prescribed to govern or to influence the exercise of these discretionary powers. The word "guidelines" requires

35

- ----- - ~~~--

some definition. It is not literally apt to describe a rule which in fact takes away a discretion which it purports to guide. We are not however engaged upon an exercise in sem~ntics in any pedantic sense, and we use it in the sense of any principle or rule or standard WhICh, whether mandatory or permissive, should or may generally be applied in the making of any decisio~ rel~ting to parole. In this sense, guidelines may be established in several ways. They may be prescnbed m actu~l terms by statute or by a body which is authorised by statute to prescribe them. They may be prescnbed by the binding force of judicial decisions. If they are so prescribed they have the force of law and must be observed by the tribunal to which they are directed. But even a guideline which has ~he .force of la~ may be expressed in terms which reserve to the tribunal a power to depart from the pr~nciple .stated ~n certain circumstances. On the other hand guidelines may be promulgated by the tnbunailtself, m which case they can be changed from time to time and do not in themselves bind the tribunal to apply them in all cases.

3.48 A guideline which has the force ofIaw is of cour~e an authoritati.ve ~irection as to the manner in which an otherwise discretionary power shall be exercIsed. But all gUIdehnes, whether they nave the force of law or not, appear to have two possible advantages. Firstly, they may tend to produce consistency in discretionary decisions. Secondly, the~ in.form th?se ~ho will ~e affected by ~he discretionary decision of the principles or some of the pnncI~les WhIC? wIll or are !Ike.ly to .be apphed in the making of that decision. On the other hand, the draftmg of satIsfactory gUIdelmes IS a task of considerable difficulty. The question of whether or not a particular offender should be released upon parole is one which, if it is to be both fair to the offender and consistent with a due rega:d for the interests of the community, requires a consideration of a number of factors and an evaluatIOn of the weight to be attached to each of such factors in the particular case. An inflexible guideline i~ t.h~refore seldom a satisfactory one, and yet in an endeavour to preserve a pro~er degr~e of fl~XIbdI.t~, t~e guideline may need to be expressed in such te~s. that the ai?I of prodUCI~g C?nSIstency m deCISIon IS no more nearly achieved than if no such gUIdelme. was .laId do\;,n. ?utdeh.n~s can be. o~ value by indicating factors which the tribunal sho~ld ~onsider m. reachmg ItS declsIo~s ~ut It IS seldom practicable for them to be so frame? as to I~entIfy ~xhau~t~vely e.very fact~r W.hIch IS r~levant.. An.y value that they may have in promotmg conSIstency m deCISIon or m conveymg mformatlon, WhICh IS likely to be helpful to those who are subject to such decisio~s, will be re~uced in ~roportion to the degree to which the existence of any stated factor and the weIght to be attnbuted to It depend upon a subjective determination by the tribunal.

3.49 As to the decision of the Court in determining whether the offender shall be eligible for parole and if so the minimum term first to be served by him, we have already referred (in paragraph 3.46 abo~e) t; the existing statutory requirements which restrict or guide the exercise of the Court's discretionary power. We have already recommended (in paragraph 3.5) an amendment to the Act to clarify and extend the statement of factors the Court should consider in determining wheth~r. an offender should be eligible for parole. We have also (in paragraphs 3.6 to 3.8) expressed our opmIOn that the provision by statute of a standard non-parol~ ~eriod whic? would.either remove or limit. the discretion of the Coun to determine the length of a mimmum term IS undeSIrable. We do not conSIder that the prescription of any further guidelines for the exercise of these discretionary P?wers by the Court would improve the administration of the c~minal law in this State. As we hav~ pomted out, the decision of the Court is subject to appeal by eIther the offender or the Crown; m the case of an offender convicted by the Supreme or County Court, under sections 567 or 567 A of the Crimes Act 1958, and in the case of an offender convicted by a Magistrates' Court, under sections 73 or 74 of the Magistrates' Court Act 1971. As to eligibility for parole, the onus is already pl.aced upon the Court to make th:'offender so eligible, if the sentence is for two years or more, unle~s It conSIders that parole is inapPlOpriate. As to the length of the minimum te:m, the proper term wIll depen? u~on so many diverse circumstances that in our view it would be Impracticable to frame any gutdehne or set of guidelines which would adequately encompa.ss all ~he considerations which w~uld.be relevant.to i~s determination. To select anyone such conSIderation and to promulgate a gUIdelIne concermn~ It would inevitably tend to suggest that it should carry more weight .than ot~e~ conside~at.io~s :vh~ch have not been spelt out. That risk may sometime:; be warranted, partIcularly If m a ceitam JunsdictIOn experience had shown a tendency by Courts to undervaiue the importance of the particular

36

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consideration. For example, in some penal codes, a criterion is laid down that an offender should not b~ released upon parole at a time which would depreciate the seriousness of his crime or promote dIsrespect for law. We have already said that statistics do not suggest that Courts in Victoria are d~veloping an~ d.a~gcrous t~n?encies in this regard which a statutory guideline may correct. In these ~Ir~u~s~ances It lS m our o~mlon p:efera?l.e to rely upon the existence of a comprehensive appellate JunsdI.ct~on to ~ev~lop con~Istency m decISI.ons rat~er than to endeavour to achieve the same result by prescnbmg gUIdehnes WhICh are necessanly fleXIble and therefore imprecise.

3.50 On the other hand, decisions of the Parole Board are not subject to the regulatory influence of an appellate procedure which might tend to promote consistency. They are however decisions which are. not made b.y a multiplicity of authorities but which are made by the one Board, the members of WhICh change mfrequently and who deal with a large number of cases in each year. It is inevitable that a small body of responsible persons who deal with many cases over long periods of time will develop criteria to assist them in arriving at their decisions, and the decisioils of such a Board are far mor~ likely. to be con~istent .than th~ decision~ ~f a number of diverse tribunals. In the absence of any credIble eVIdence of InCOnSIstency m the deCISIOns of the Board, we do not consider that the aim of consistency requires the prescription of guidelines imposed upon it to achieve that result. But in one respect the promulgation of the criteria which the Board applies in arriving at its decisions would have significant value. It is frequently asserted that, under the present procedure, an offender is unaw~e. of w~at those criteria are, and, whether or not this ignorance is as widespread as it is asserted to be, It IS deslr~ble that steps should be taken to meet the criticism. We have already referred to the duty of the full tIme member of the Board to explain its decisions to those who are affected by them, but ~~ch an explanation after the decision has been made is no help to the offender who is awaiting the deCISIon. We have also referred to the comprehensive booklet called' 'On Parole" which is designed to in~orm o.ff~nders ?f t?~ incideQts of the parole system, but we have also referred to the present defiCIency In ItS avaIlabIlIty to offenders. In any event, a concise statement ofthe criteria which the Board will apply is likely to be much more readily comprehended by an offender than what he may deduce from a study of the booklet, informative though it is. .

3.51 The drafting of such criteria is in ?ur opinion a task which the Board itself is the appropriate ?ody.to ~ndertake. No other body of persons will have had the experience which the Board has had in IdentIfymg the problems whi~h p~r~le may,Pose or in determining criteria which are best designed to meet.those problems and WhICh It IS practicable to apply. The publication of such criteria will not o~ly ~nform offend~rs of the p~inciple~ by which their cases will be judged, but will also enable such pnn~Iples to be s~bJect to publIc scrutmy. If any of them do not accord with the principles which the LegIslature conSIders should operate, appropriate legislative action can be taken.

3.52 (a) Accordingly, other than the amendmellt to section 190 of the Act which we have recom~e~ded ab~ve,in paragrap,h 3.5, we do not recommend any additional/egislative presc:'l!tlon of cntena to be .appbed by a Court in determining whether an offender should be eilglble for parole and, if so, the length of the minimum term of imprisonmellt to be served by him.

(b) We recommend that the Adult Parole Board should draft and publish a concise and readily u~d~rstandable sta~ement of the criteria which it will apply in determining whether an eilglble offender Will be released upon parole, and if so, when.

3.53 We can se no advantage to be gained by the publishing of guidelines relating to a decision of the ~oard as to whether or not par?le should be cancelled. The parolee will already have been warned, eIther by the Board or the full tIme member, of the obligations which attach to him whilst on parole, and any further information will be of little practical value. We accordingly make no recommendation in relation to such decisions of the Board.

37

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H. Automatic Parole on Short Sentences

3.54 In the Home Office review of parole in England and Wales (May 1981) to which we have already referred (see para. 2.58 above) a suggestion for automatic parole for prisoners serving sentences from six months to three years in length is discussed. The Director-General of Community Welfare Services requested the Committee to consider the same possibility in Victoria for prisoners similarly sentenced. Any proposal for automatic release upon parole must of course involve a means of determining the time when a prisoner would be entitled to such release. In a proposal which is intended to apply to sentences over a range of six months to three years, the obvious means of fixing a date of entitlement to automatic release is by fixing a proportion of the sentence which the prisoner must first serve in prison, with possibly a fixed minimum term which must also be served. The proposal which the Committee was asked to consider was that, unless the prisoner had had a prior parole history, in which case consideration by the Parole Board would be necessary, prisoners sentenced to such terms of imprisonment would be automatically released on parole after serving two thirds of their sentences less any remissions of sentence which they had been granted.

3.55 The English suggestion was of course made in the light of the existing statutory provisions for rarole in that country and in considering the application of a similar system in Victoria, itis important to bear in mind the differences between the parole systems in each country. Unlike the position in Victoria, the Court in England does not determine eligibility for parole or fix minimum terms which must first be served. Under the Criminal Justice Act 1967, a prisoner serving a determinate sentence may on the recommendation of the Parole Board be released after having completed not less than one-third of his sentence or twelve months, whichever expires the later. There is therefore a minimum term which is fixed by statute and thereafter his release is dependant upon a recommendation of the Parole Board. As in Victoria remissions of up to one-third of the sentence may be allowed for good behaviour. In view of these allowable remissions, the effect of the minimum requirement that at least twelve months must be served before release is that eligibility for parole only operates for those serving terms of more than eighteen months imprisonment. Indeed, to provide for any meaningful period on parole, the sentence would need to be considerably more than eighteen months. The Home Office review expressed the opinion that there were substantial attractions in extending the central idea of parole to a greater proportion of the prison population. So long however as parole depended upon a recommendation of the Parole Board which was based upon an assessment of the prisoner's suitability for parole, the review set out reasons which is said seemed valid for the retention of the rule for minimum imprisonment for 12 months. It was in these circumstances that it raised for discussion the question of automatic release on parole after service of one-third of the sentence in the case of sentences from 6 months to 3 years, rather than release on the recommendation of the Board after an aSSLssment of the prisoners suitability.

3.56 In Victoria the law does not require that a prisoner should spend 12 months in custody before being released upon parole. The initial assessment of whether a prisoner should be made eligible for parole is made by the Court at the time of sentence. The subsequent assessment by the.. ~~':llie Board as to whether he is ready for release at the time when the minimum term fixed by tht Court has expired does not require a period of twelve months in custody to enable an informed d,ecision to be made. The main factor therefore which in Er.gland has raised in the case of shorter sentences the question of automatic release rather than release dependent upon a favourable decision as to suitability does not operate in Victoria. Apart moreover from its effect upon the question of whether release upon parole should be automatic or discretionary in the case of the shorter senteD(:es, we have already referred to the restrictive effect in England; qf the minimum requirement of f,\velve months custody upon the length of the short sentence for which it is practicable to proville ;;Jarole. This restriction is greater than that which the legislation imposes upon short sentences for Which parole can be provided in Victoria. Whereas in England to provide for any meaningful period fin parole, the sentence would need to be considerably more than eighteen months, a prisoner ip Victoria can be made eligible for parole on any sentence of twelve months or more and even on the shortest of those sentences a meaningful period on parole can be provided. There is another much less obvious consequence of difference between the legislation in England and Victoria which results in the

38

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former b~ing more restrictive than the latter in the se ' England In calculating the minimum requireme t f ;te~ces upon whIch parole can be provided. In sentence does not count In Victoria po' ,n ~ wedve months custody, time in custody before sente ., r vIsIon IS ma e whereby ti .

nce may count as part of the sentence In' me spent In custodv before two countries it would be practicable to r~le comp~nng therefore the sentences upon whi~h in the these respective provisions These several d'f~se a pnsoner on parole, allowance must be made for not of ~our~e m~an that a pr~posal similar to ~h:~~~f;hb,et:~en t~e legisla~ion of the two countries do value In Ylctona but they do indicate that certain f IS eIng.dlscu~sed In England would not be of proposal In England either do not exist or h achtolrs whIch '!llgh~ favour the adoption of the

ave muc ess force In VIctoria.

3.57 Any proposal to substitute auto~atic release u on ' . to 3 ye~s In length in place of the system which ha p parole .for ~nso?er~ servIng sentences of up very cntlcal examination The Victorian syste . ~ ope~ted In V Ictona SInce 1957 would require ?y the Court and secondl~ by the Parole Boar: ~~~~r;es t .e dual ~afeguards of consideration, firstly ~?te:est to obse~v~ that in para. 52 of the Hom~ Office ~~7soner IS ~eleased upon parole, and it is of ~t IS the selectIVIty of the present system which has enabl:w to whIch ~e have referred, it is stated

~Ith,out ~nacceptable consequences in terms of ublic safi d, ~o many pnsoners to be released early In Vlctona it is probable that the control who h' P . ety. One could add to that statement t'1ai t~e ~a.role Board has materially contributed~o ~~:x~~:~ed over release upon parole by the Court ~nd pIty If that public acceptance was jeopardised. p IC acceptance of the system and it would be a

3.58 It has been suggested in favour of the ro osal . would reduce the prison popUlation An schP p .' both ~ere and In England, that its adoption prisoner is required to spend in priso'n un~er a em~ WhIC.h, arbItrally or otherwise, reduces the time a term. r.educe the prison popUlation and thus s~;n~nce Impo~ed by a Court will of course in the short admmlstrators face. We have in earlier sections oft~? alleVIate a recurrent problem which prison ~onsideration in relation to parole generally B t th IS report already stressed the importance of this Im.p~rtant one, among the many which are r~levUant ~ ~ost to th~ State i~ only one factor, albeit an eXIstIng sentencing alternative should b he questIon of wnether a modification of an

e recommended.

3.5~ In the opinion of the Committee, a great deal oifrese ramifications of a proposal to make such fi d I arch would need to be undertaken into the beF. a un amenta change in th V' . :lore a recommendation on the matter co ld b . . e lctonan system of parole

u e properly conSidered.

4. Youth Parole and Remissions A. Parole

4.1 Adult parole relates to offenders who have been '. however of most young offenders whose of'&enc . sent~d'nced to Impnsonment in a gaol In the case orde C . V" ' 11 e IS consl ered se . h . b r, o.urts. In Ictona are empowered to order a form f ~ nous enoug. to warrant a custodial y detentIOn In a youth training centre. Provision is 0 cu~tody other th~n Imprisonment, namely

1970 for parole for this class of offender and we fi ~ade bh the Commumty Welfare Services Act 169, the Youth Parole Board which is c~nstitutedr~ e~ °t~UC parole as "youth parole". By section young person detained in a youth training cent b

n er I e Act may by order in writing direct that a

. re e re eased upon parole.

4.2 The expression' 'young person" is defined under t.h~ ~ge ?f 21 (section 3), but for the u to mean a person of or over the age of IS years and the defInItIOn IS extended to include any peiso~oses 0: Part VIll of the Act (which deals with parole)

o~t~~te~ion in.a ~outh training centre or relea~:~~~ ~~~~hOf21 rea(rs w~o is undergoing a sentence ~I I.n t e age bmlts so defined, may be detained in p~r~ e sectIOn 153). A young person certam cases by direction of the Minister. A Chi1dren~ :~uth traInmg centre. by order of a Court, or i~

ourt may so order In some cases (Children's

39

Court Act 1973, section 26(l)(f) and, although our Terms of Reference are limited to the examination of sentencing alternatives available to Courts in respect of persons not subject to the jurisdiction of Children's Courts, the facts that the same alternative is available to both Children's and other Courts and that in whatever Court it is directed youth parole is provided for under the same conditions are relevant to a consideration as to whether there should be any and, if so, what change in these conditions. In the case of the adult COUlis, jurisdiction to order detention of a young person in a youth training centre is given by the Crimes Act 1958, section 476~ a~d the Magist~a~es' Courts Act 1971, sec. 71. Apart from detention by order of a Court, power IS gIven to the MInIster, upon the recommendation of the Adult Parole Board or the Director-General, to direct that a young person imprisoned in a prison be transferred to a youth training centre (Community Welfare Services Act 1970, sec. 167). Upon such transfer, the sentence of imprisonment becomes for all purposes a sentence of detention in a youth training centre.

4.3 There is a significant difference between the statutory provisions relating respectively to ~he grant of adult and youth parole, in regard to the extent of the control which the Court can ex~rcIse over such grant. In the case of adult parole, it can only be granted by the Adult Parole Board If the Court has made the prisoner eligible therefor by fixing a minimum term and the Board cannot release the prisoner until the minimum term fixed by the Court has been served. In the case of youth parole, any young person detained in a youth training centre may under the statute be released upon paro.le by the Youth Parole Board at any time, whether he is so detained by order of a Court or followmg a transfer from prison by Ministerial order. His eligibility for parole is established by the statute. If he is detained by order of the Court, the Court has no power to fix a. n:inimum te~ ~hich he must ~erve before release. If he is detained following a transfer by the MInIster, any mImmum term whIch a Court may have fixed in relation to his prison sentence ceases to have any effect as far as his release upon parole is concerned (section 168).

4.4 This apparently lesser degree of control by the Court over the grant of youth parole ~ust however be considered in the light of other considerations which to a large extent counte~balan~e It or reduce its significance. In the first place, (restricting our attention to the adult Courts WIth ~hIch. we are concerned in this Report), the power of the Court to direct that a young offender be ?etal~led m a youth training centre can only be exercised in cases where the Court was em~oVlered to ImpnS?n t~e offender for the offence he has committed. The Court therefore has the chmce of the remedy It WIll adopt in each case. It is reasonable to assume that in .cases where it has chos.en the alternative of detention in a youth training centre, the Court has conSIdered that the offender IS one who should be eligible for parole, If on the other hand it chooses imprisonment, it has the same meas~re of control over the grant of parole as it would have had in the case of any adult offender .. Indeed, In one respect the existence of the alternative remedy of detention in a youth training centre gIves the Court a greater measure of control over the grant of parole than exists in the case of adu.lt offenders. Adult p~role cannot be granted to a prisoner whose sentence is le.ss. than 12 mo.nth~, but If ~ Cou~ chooses to dIrect that a young person be detained in a youth trammg centre m heu ~f Impos~ng a se?tence of imprisonment, its order makes the offender eligible for parole at any tIme and IrrespectIve Of. the length of the detention directed. In the second place, although the Court has no power to fIX a minimum term, the overall length of sentences of detention which ~ young person may be ordered to serve is limited in the case of Magistrates' Courts to two years and m the case of other Courts to three years. If within this lower range of sentences, the Court considered that in a particular ca~e the offender should be required to serve a minimum period before being released upon parol~ and It was not prepared to leave the deteImina.tion .of that minimum 'per~od to the Par?le ~oard, It would of course have to impose a sentence of Impnsonment. In consIdenng sentences m thIS range, however, it is clear that any difference between the respe<;tive views of the Court and the Parole. B~a~d as to th~ appropriate length of such minimum period is unlikely to assume the same degree of slgmflcance as It may assume in the case of much longer sentences.

4.5 The greater flexibility in determining the date of release upon parole which the statute provides in the case of young offenders is not surprising. The ~ounger a delinquent the gr~ater the hope that society entertains for his reformation under appropnate control; at the same time however, the

40

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younger a. delinque.nt the more likely he is to be influenced by his peer group. Any institution for young delmquents IS boun? to have a large proportion of inmates who have not responded well to w~at~ver controls hav~ eXlst~d ~ut~ide. the institution in their individual cases, and the danger of brmgmg !h~m together m the I~stItUtI?n.ls th~t of developing influences which are counterproductive to th~ trammg they are to receIve. ThIS IS a dIlemma which faces all corrective institutions. It means that In general, as s?on. as ~ trainee has reached the stage where hope may reasonably be entertained t~at the controls whIch m hIS case can be brought to bear outside the institution should suffice to keep h~m out of f~rther trouble he should be released. The determination of this optimum point of time for hIS .release ~s no easy t.ask, but it is more likely to be correctly determined if the decision is made dunng the tIme .that he IS u~der constant surveillance than if the Court attempts to make it at the time of sentence. It. IS ~ot practtcab!e. for a Court to keep under constant review each case where it has ord~red deten~IOn .m a youth trammg c~ntre. The decision consequently must be committed to a body whIch can maI~tam such constant revIew and the conditions affecting the sentence must be flexible enou~h to permIt the body to whom the decision is so committed to give effect to it at the time when it consIders that the most favourable results will follow.

4.6 The procedure adopted by the Youth Parole Board in the determination of whether and if so when a young person detained in a youth training centre should be released on youth parole is ~imila; to ~hat .adopted by ~he Adult Parole .Board in the determination of cases of adult parole. Unlike the case of the adult pnsoner however, 111 respect of whom a decision as to whether and, if so, when he should be re!e~s~? does not need to be undertaken until shortly before the expiration of his minimum ter?I? the elIgIbIlIty ~or parole at any time after sentence of the young person detained in a youth t~aJm~g centre reqUIres. the pro~edure adopted by the Youth Parole Board to provide for this SItuatIOn. Shor:ly after ItS Jes~abhshment, the Board took the view that, other than in exceptional cases, short peflods of parole mvolved a wasteful use of administrative personnel and effort and were 0: ~oubtful va~ue to t.he ~ar~lee. In cases where a trainee had been already removed from the ordinary clv~1 c~m~umty.to InstIt~tIOnal care for ~ consid~rable time, even a short period of parole might ass~st hIm In settlIng b.ack mto the commun~ty '. b.ut In gener~l a ~hort period of supervision by a parole offIcer woul~ be unlIkely to make any sIgmflcant contnbutIOn to his rehabilitation. The Board therefo~e deCIded that, unless a case. was spe~iall~ referred to it by an officer of the Department or other~Ise appeared to warrant specIal attentIOn, It would not consider parole in cases where the detentIOn ord~red was less than 6 months. All other cases were however considered by the Board as s~on as practIcable after the Court order was made, and the Board having regard to the age and hIstOry of the offe~der, the nature of.the offence and the length of detention ordered by the Court would then ?eterI?m~ whe.n the q~estIOn ?fparole would next be considered. We are informed that the Board ~tIll mamtams thIS ,practIce , ~ubJect.to one modification which has been made in the light of lat~r expenence,. namely, that except m specIal cases, the Board will not consider parole unless the penod of detentIOn ordered was at least nine months.

4.7 As in the case of the Adult Parole Board, the Youth Board reaches its decision on the basis of reports from officers of the institution where the trainee has been h~ld, a parole officer who interviews the trainee and where appropriate his family or other connections, medical officers, and any other relevant material upon the trainee's file. Review reports are frequently discussed with the trainee to acquaint him with their contents, but as in the case of the Adult Parole Board, the trainee is not given access to all the material upon which the decision is made, nor is he present or entitled to be represented at the hearing, and there is no formal appeal available against the Board's decision. Howev~r, a traine~ can write to the Board requesting reconsideration of a decision and in every such case, hiS request IS brought to the Board's attention.

4.8 It is unnece~sary for.us to describe i? detail the effect of other legislative provisions relating to youth parole. It IS suffiCIent to say that msofar as they relate to the cancellation of parole and the effect of such cancellation they are similar to those which relate to adult parole.

4.9 The similarity of the. statutory frameworks relating respectively to adult and youth parole and of the procedures under WhICh each type of parole operates, means that the criticisms which have been made of adult parole, insofar as those criticisms are valid, may also be applied to youth parole. The

41

conclusion to be drawn from an evaluation of those criticisms should in our opinion depend upon a comparison between the respective benefits and disadvantages involved in the system of youth parole, as it does in the case of adult parole.

4.10 The advantages of a system of supervised parole for young offenders appear to be so obvious that it should be unnecessary to discuss them at length. We have already referred to the importance of the release of a young offender at the time when he is most likely to have derived benefit from his detention and least likely to have been adversely affected by it. Difficult as it may be to determine correctly when that time has arrived, the parole system enables that decision to be promptly implemented. The ability of an offender to keep himself out of further trouble after he has been released will moreover frequently depend upon the controls which can be exercised upon his conduct. The system of parole provides two such controls, namely, the supervision of a parole officer and the deterrent effect of that part of the sentence, the service of which has been suspended. It may of course be that in spite of these considerations there would be less recidivism if all young offenders for whom some institutional training was necessary were sentenced to fixed terms of detention and required to serve the terms so fixed. No satisfactory proof one way or the other is likely to be obtained, but, as was the case in relation to adult parole, the statistics which have been maintained by the parole authorities seem to warrant optimism as to the results which have followed from youth parole. The Tables which are annexed to the Report of the Youth Parole Board for the year ended 30th June 1979 indicate that during the 18 years since 1 st July 1961, when the system of youth parole was established, 5404 orders for release upon parole had been made and in only 1317 cases (i.e. less than 25% of the total) had the parole been cancelled, either by order of the Board or by reconviction. It would in our opinion be a policy of despair to proceed upon an assumption that a reasonable period of supervised parole for a young offender, who would otherwise spend the same period in custody, will be of no significant value in helping him to conform to accepted community standards. Such an assumption is not supported by the figures we have quoted, and the far more positive policy for the handling of delinquent young people which a system of parole presents should in our opinion be maintained.

4.11 The question however still remains whether, in the light of any of the criticisms which have been made of the parole system in general, any change should be made in the procedures by which the system of youth parole is implemented. In view of the comments we have already made upon a number of these criticisms when dealing with adult parole, we consider that the only aspects of the youth parole system which need consideration are those related to the circumstances in which decisions of the Youth Parole Board are made, i.e. the reliance of the Board upon material to which the trainee may not have been given full access, the absence of the trainee or of any person representing him from the hearing, and the fact that there is no right of appeal against the decision.

4.12 Fundamentally, the considerations upon which we have already relied to conclude that, in the case of decisions by the Adult Parole Board, it would be either impracticable or undesirable to endeavour to engraft upon a procedure which is essentially administrative features which would be appropriate for a hearing by a Court, apply also to the decisions of the Youth Parole Board. We have discussed these considerations fully in the second chapterofthis Report (see paragraphs 2044 to 2.55) and it is unnecessary to repeat in detail what we have there said. In relation to decisions by the Youth Parole Board however there are certain matters which we desire to emphasize. The system of youth parole which is administered by the Youth Parole Board applies not only to offenders under the age of 21 years who have been dealt with by adult Courts but also to the much younger group of offenders who have been ordered by Childrens Courts to be detained in youth training centres. It would be both inconvenient and anomalous to have different rules applicable to hearings before the Board, according to the age of the offender whose case was being considered. Certainly in regard to the younger group of offenders the adoption of the more adversary features which usually attend a hearing of contested matters in Courts could hardly be regarded as a desirable development. We have moreover already referred to the desirable objectives in a parole system for young offenders of determining the optimum date for the release of the offender and of prompt implementation of the decision reached. The flexibility and expedition in the system which facilitates the attainment of

42

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these objectives is more likely to exist when the decisio' d .... the prese~t informal circumstances than if a hearin wit~ I~ rna e by ~n ~dminIstrative tnbunal un?er we~e requIred. The desirability of confidentiality of the re;o~~o:~~~nt~Id~nts of a C~urt proceedmg mamtenance of a satisfactory rapport between trainee d 'I ff e oard .considers and of the referred in discussing adult parole is certainly f an 1 paro ~ o. :cer, to WhICh we have already offenders. Insofar as any danger of' otential unfafrn n~ ess SignIfiCanC~ ~n dea1in~ with young procedure it is considerably reduced ~y the constituti~~:S ~~ t~~ ~ffe~der ~~ Ihn~olved. In the present Judge of the County Court That dan er is . .... oar, w IC IS presIded over by a undoubted advantages whi~h accrue ~o the In our OP;FIO~ mInImal, and is far more than offset by the In the result we consider that any sUbstantiar~~;~t~ ent e;hfrom the present system of youtih parole. were designed to make such procedures similar t~O~ 0 e 6-re~ent procedur~s of the Board, which Court, would tend to make those rocedures unw ose w .IC are appropnate ~or a hearing in a against the maintenance of a satisfactory system o~.r~~:~ or tOlmt~duc~~actors WhICh would militate any such alterations in the present procedures of the B~:;~.e. ccor mgly, we do not recommend

4.13 In the case of the Adult Parole Board w h h draft and publish a concise and readil unde~st e dave owever recomme~de? that. the Board should determining whether an eligible off:nder w'l~nb abl~ stat~ment of the cntena WhICh it will apply in above). The publication of a similar statemenit by ~h~e ;~s~h ~po~ p~role, (see paras,.3.50 to 3.52 be of value in the field of youth parole for the sa u aro e oa~d would also In our opinion paragraphs and which it is unnecessary for us t~~:;:!~ns as those WhICh we have set out in those

4.14 We therefore recommend

(a) That the present system of youth parole be mainta' Board generally in accordance with thepr d lIleddand 0I?erated by the Youth Parole and oce ures un er which that Board now operates:

(b) That the Youth Parole Board dra'i al d bl' I . '11 I' lI' 1 pu is 1 a conCise statem t if h . . Wi app Y III determining whether and if h en 0 t e crlfena which it

parole. so w en a young offender will be released upon

B. Remissions

4.15 The provision for remissions in the case of 0 f11 ~rain~ng centres is very much more limited than ~h~~10~ ~~de~s ordered to be detained in youth Impnsonment. We have already pointed out that i th 0 en ers who have been sentenced to the Director General to grant remissions not excee~' e case/)~ ~he ;a~ter, the RegUlations authorise may be granted upon a sentence of imprisonment w~~fh one nIr 0 t. ~ sentence. Those remissions respect of it, and if a minimum term has been fixe er or .no! a mInImum te:m has been fixed in service of the minimum term is regarded also as a r~~ ~~e. remISSIon g.r~nted dunng the period of the asse~sing the of~ender's expected eligibility date f~:1~~~~~he mInImUm term for th~ purpose of ServIces RegulatIOns, Division III, Part XIII Re ula' 9 on parole. (Commun~ty Welfare sentences .of detention in youth training centres' it is ~nl tI?n h 70.) In the case of tramees under been c~nsI.dered to be inappropriate for parole b~ the Yo~t~n; e fa~ of those whose sentenc.es h~ve served m heu of a fine that remissions may be granted Su h aro.e . oard or wh?se sentence IS bemg and response of a trainee to the treatment ro ram . c remISSIons are subject to good progress sentence. (Community Welfare Services keg~lati:e, ~.d .~ay ~~t ~xceed one-quarter of the total and 107B.) As there is no provision for the court to /' 1~I~IOn , art. XIVA, Regulations 107 A youth training centre and the Youth Parole Board c~~ ~e%I:;mum t~rm In the case of dete~tion in a sentence, there was of course no need for the Regular" t e axa~nee on par?le at any tIme after terms. The significant differences between the ~o?s OproVI e orthecontIngencyofminimum firstly, that in the ~ase of trainees remissions ca:~~~;s~~ns m:~e fo~ the two types of sentence are, considered inappropriate for par~le and who co gra~ e to t ose whose sentences have been required to serve in custody the whole of the ns~qUen~ly without the grant of remissions would be response to training, and, secondly the differe~~~:a~ce ~mpo~e~ irrespe~tive ~f their behaviour and of sentence. ' eo remISSIons avaIlable In respect of each type

43

4.16 An order for detention in a youth training centre is intended to be rehabilitative but iris also punitive. Its rehabilitative aspects consist of training in the institution and, if the trainee is considered appropriate for parole, of supervision by a parole officer during the remainder of the period of detention ordered. The order is punitive because of the actual detention involved in the order and, if the trainee is released upon parole, because of the restrictions imposed upon him and his continuing liability to further detention if his parole is cancelled. There is little logical basis for the granting of remissions upon the period of detention ordered. They cannot in any substantial way promote the rehabilitative aspects of the order. In fixing the period of the order, the Court presumably has determined the period which in its opinion is necessary to afford the offender the opportunity to respond satisfactorily to his training and any shortening of that period may abort the most important consequence which is hoped for as a result of the sanction which the Court has chosen. The Parole Board can release the offender on parole at any time and as his response to the training he is receiving would probably be the most significant factor in determining the date of such release, there is no need for remissions either to reward him for his response or as an aid to prisoner management. Release upon parole in itself furthers both of these objectives. Some trainees however will not be released upon parole and a proportion of those who are released will have their parole cancelled. It is in relation to these two groups that remissions must be further considered.

4.17 In relation to the first of these groups, we have already referred to the practice of the Youth Parole Board of not considering the release of a trainee upon youth parole (except in special cases) when the length of the period of detention which was ordered in his case is not long enough to permit a sufficiently long period on parole. By far, the greatt;st number of trainees who are not released upon youth parole are those who have been ordered such short period of detention. There are others whose period of detention may have been long enough to permit their release upon youth parole but who before the time of such release were transferred to a prison, either because they were found to be unsuitable for a youth training centre or because they have received further sentences. Any trainee who is so transferred is thereafter subject to the Adult Parole Board in regard to parole and his entitlement to remissions is determined by the regulations which relate to those who were sentenced to imprisonment. Apart from these two classes, there would be very few trainees who were not released upon parole by the Youth Parole Board, and in relation to whom the question of remissions would consequently arise. If a trainee is not released upon parole, the order for detention deprives him of his liberty in the same way as a sentence of imprisonment and the considerations which justify the grant of remissions upon a sentence of imprisonment would appear to justify remissions upon the period during which he was ordered to be detained. The present Regulations provide for remissions where the sentence of detention is considered to be inappropriate for parole, and although the wording ofthe regulations appears more apt to apply to the case of short sentences, we were informed that in fact they are interpreted to apply to all cases where youth parole was not granted. The scale of the remissions available is lower than that available upon a sentence of imprisonment, and we consider this question at a later stage, but the eligibility for remissions of all trainees who are not granted parole appears to be covered by the manner in which the present regulations are interpreted. In the case of a trainee whose sentence is considered to be too short to be appropriate for parole, his eligibility for remissions is determined at a very early stage in his detention.

4J 8 In the case of a trainee who has been released upon parole his parole period covers the remainder of the period for which he was ordered to be detained, and if his parole is cancelled he is liable to serve the remainder of that period in detention. Ifhis parole is not cancelled, he has still been in one sense worse off than ifhe had been sentenced to imprisonment for the same period for which he was ordered to be detained. A prisoner would be eligible for remissions upon his sentence in respect of the period for which he was imprisoned prior to his release upon parole. A trainee on the other hand remains liable until the end of his parole period to serve the whole of the period of detention ordered. We have however already pointed out (in paragraph 4.16 above) that, having regard to the rehabilitative aspect of an order for detention, there is good reason why that period should not be shortened. In the case therefore of a trainee whose parole is not cancelled, we do not consider that provision should be made for remissions.

44

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4.19 It is in the case of the cancellaf ' . careful ana!ysis. Upon can cell . IOn of parole that the position in re ard '. treated as still eligible for furth atlOn fny one of three results may fOllo~ . to r~mlss~ons requires pa~sed ~pon him, will be fixed;e~!'~::ya~d ~ laterfireview date, having regar~lt~ a~; f~~~nee may be as Impnsonment; or he ma b ' e r~ns erred to gaol to serve the r' ~r sentence parole, he is substantially i~ theeJUdged to ,b,e In~PPtopriate for parole, If h:~aInd~rofhls sentence paroled, and there is no need fi same ~osltlOn In regard to remissions as h s agaIn released upon to prison, his entitlemeni to re:i~:I'toonrelt~lrlabte the considerations which then :ri~:s IWfhhe~ he was first who we ' s WI e determined d " e IS transferred Youth :a~~f:~~~: ~o l?1prisonme~t and his position as a ~~~:~~;a~egUI~tions which relate to those regarded as eligible fo;~~~~ t~at he IS not appropriate for parole we ::e I~ no longer relevant. If the ?e granted in relation to the ;~~~s u~~~r the present regulations: but that s~~~Or=d t,hat he would be ~n relation to any further sentence n;hic~ ~:~t~nce ,:hich Upon cancellation he was 1~~~I~St~~eUld onl~ p~~r:~~~dt~fs~~sssi~ns i~ rela~i?n t? the perio;~: I~O:;~n~~~~~~m, !n oth~r word~, he wo~~ ~~t parole which has %otC~~~ ~OSltI~? ~s consi~tent with that of the trai:~I~~ p~or ~o hIS release upon any differences between tha~~r~e e . ConsIstency in the treatment oftraine~ .as een, released upon to ,imprisonment. Therefore alt~tme~t and th,e treatment accorded to those ~ IS ;ore Important than adjudged to be not a "oug the tramee, who has had his w 0 ave been sentenced adult parolee in simifa~~~~~:s;or ~arole, is less favourably treate~~~o;: c~~celled a~d,is thereafter warrants any change in the reg~n~~s woul? be, we do not consider that t~is d!~ remlss~ons than an

a Ions or In the basis upon wh' h h I erence m treatment 4,20 Before we sum up our c I' , IC t ey are administered.

~t:~~;~!~~~ ~e~~~~i~n:h~a~cn~t~~ r~%~~:i~~;e!~!~~ ~~:~e~~f!~~~~ ~!t~~~~ees for remissions, it is have been sentenced to ' , exceed one-quarter of the total sentence i th e. As we have already effe~t ~or a maximum re~~~~I~on~ent, th~ scale of remissions which c~n ~eca~f of offende,rs w~o remISSIons for trai no, one-thIrd of the sentence We a owed proVIdes In

training centre wer~~~n~~~~~dbfe~~~~!ed be~ause the cond'itionsw:;!e~~~~t~~tt~~~i~ow.er scale of tr~e and we have already expressed th r?us ~ an those affecting imprisonment Th' n In a youth pnsoners b e vIew m Part C of Ch . IS may well be

make it de~~~bl: ~~::~~:ct;:x1~~:~!' I,n ~ur ~pinion howe~:~~~~;e ~~~t ~~:e~~~~s~~eremt,iSsions !or sentence Th I' mISSIOn m the case of t ' ra Ions whIch ultimate bene~i~~~htr:~~:s who t~ eligible for remissions ar~a:~:: ~~~U~d also be one-third of the these trainees, in order to ~:~s~ ~ rom y.outh parole, We have pointed out t:Vt n~~ been granted the sentence upon which the m am conSIstency with the treatment of oth a m e case ~f some of remissions would be cal~ur:Yd b~ allowed remissions is less than that ~s, the rOportlO~ of the variation between the two ,a e

t· part however from this limited numbPon w

f Ich a pnsoner's

t ' '" sys ems IS warranted b h' er 0 cases wher th ::a~:~~~l:~ It I,S undesirable that inconsistencies S:O~l; o:~~tenan.ce of consistency in the ;out~

~~/~:gr;:~laTlhore~~m~~~~i~~~~t~C;~~s~~~~s~~~~ha~~~i~1r~:~SpSieOrnl.O~d~W~~II~dll~~:a~~::gt~:e:~~~~~ . aXlmum period f d " mvo ve mach f '

maximum period the d' ffi . bO etentIOn whIch can be ordered is th ange 0 scale wIll 421 W ' I elence etween a third and a quarte' I ree years, and even on that

, e may summarise our conclusions ' r IS on y three months. shortly. Remissions serve no useful u I~ regard to the remissions available to tr '

:~~:;i~~:rt.ro::;~: ~': 6:~~~fn~E}a:~~i~~::h~ ~~~~ :~~~Sth~I~~:: ~!':'E:5 par~f~l~~at~~~. t~~y are however justified if a trainee rs ~~r t~e~~ardls~ tdhe prospect of Successful D e reparoled. Under the prese t ' paro e ,or after cancellation f th:~eartment, such trainees are eligible for remis~o~:guAlattlOnhs' as interpreted and applied by t~e

are some cases where fi h ' sot e scale of the r ' , favourable to the trainee than ~e~~s~i~n~~;~se of consi~tency in the system, e~~ssl~~~u~~owable,

~:~;~~~:~~~~ti~~:?~e~~~:eh~;~tgf~l~!~~~~~~~~~~~~~:~~i~~~!K;f~ 45

4.22 We therefore recommend that Regulations J07A and l07B in Part X/VA of Division II of the Community Welfare Services Regulations be amended by substitutingfor the word' 'one-quarter" in each regulation the word "one-third" .

C. General

4.23 In Chapter 3 (paragraph 3.20) we recommended that the legislation relating to adult parole should be amended to enable the use of honorary parole officers. The considerations which led us to that conclusion in regard to adult parole also apply to youth parole. We accordingly recommend that any legislative amendment which is necessary to permit the use of honorary youth parole officers should be made.

4.24 It is desirable to point out that we have in this section of the Report dealt only with the question of parole for young offenders. There are other questions relevant to the provision made in Victoria for the treatment of young offenders which warrant separate consideration, for example, whether the power of the adult Courts to order the detention of young offenders in a youth training centre should be limited to indictable offences, as at present, and the wider question as to whether in our present soci.ety the age of 21 years is an appropriate dividing line between the adult and the young offender, so as to justify a different penal system for each class. It does not, however, appear appropriate to discuss these questions under the heading of parole.

5. Summary of Conclusions and Recommendations

A. Retention of Parole System

5.1 The system of parole upon prison sentences in Victoria has operated since 1957. It has resulted in considerable benefits to the State, both financially and socially. The benefit which it confers upon a prisoner who is released upon parole is obvious and the statistics which are available suggest that in the case of the great majority of those released upon parole it has been just as effective as continued imprisonment would have been in preventing them from committing further offences. (paragraphs 2.18 to 2.26)

5.2 Various aspects of parole, as it operates in other States, have been the subject of criticism, and the Australian Law Reform Commission has recently not only recommended the abolition of parole for Federal prisoners but has expressed the hope that State parole would also be abolished. The Committee has made a detailed examination of the grounds upon which the Australian Law Reform Commission relies for its criticism of parole, and of the extent to which such criticism can be validly made of the system of parole in Victoria (paragraphs 2.27 to 2.55). As a reslt of that examination, the Committee considers that in Victoria the benefits which the system of parole confers, both upon the great majority of the prisoners to whom it applies and upon the community, so far outweigh any defects which are inherent in the system that it should undoubtedly be retained. That view is supported by a very recent publication of the Home Office in the United Kingdom. (paragraphs 2.56 to 2.59).

5.3 The Committee has therefore recommended that the system of adult parole be retained in Victoria as an integral part of the sentencing process (paragraph 2.57).

46

B. Possible Modifications of the System

5.4 In .the cOUrse of its examination of the criticisms which CommIttee considered the possibility of some m d'f . have been made of the parole system, the of decisions by the Adult Parole Board Th 0 1 Icat~ons of the procedure attending the making ?r to b~ represented before the Board, ~cce~sa~p~~t~ c~nSldered were ~he rig~t of a prisoner to appear m makmg its decision and the question of y f Iso~er to materIal WhICh the Board considered Committee came to the conclusin that it :~sappea agams~ the Boar~'s dec~sion. Tn each case, the procedure should be altered. (paragraphs 2.44e;~h~~;5)~eslrable or ImpractIcable that the present

5.5 The Committee also considered a number of other' '. system of adult parole with a vie~.v to determinin wheth po~sIble modIfic~tIOns of the Victorian effected. These various matters are dealt 'th' g Ch er Improvements m the system could be conclusions upon them are summarised in ~~ DI~I .apter 3 of the Report and the Committee's

, e 0 owmg paragraphs of this Chapter.

C. Eligibility for Parole

i9~ S~~~ect~o one m?dification, the C.ommittee considered that the conditions prescribe~ in section . 0 e ommumty Welfare Services Act 1970 under which a Court rna d t .

pns~ner Shohuld be ~ligible .for parole, were satisfactory. It considered however t~at ~h:~:~es ~htt~ a pro~Iso t~ t e sectIOn, which permits the Court to refrain from fixing a minimum term where th: sen ence IS not less than two years, are unduly restrictive.

5·7 . It recomme?d~ that t~e proviso b~ amended to provide that the Court shall not be required to fix a mmlmum term If It considers that eIther alone or in combination-

(a) the nature of the offence, (b) the antecedents of the offender, and (c) any other relevant circumstance ,

renders the fixing of a minimum term inappropriate. (paragraphs 3.2 to 3.5).

D. Standard Statutory Non-parole Periods

~~~gt~hef Co~~ittee considered that legislation, similar to that in some other jurisdictions to fix the o .a mIm!flu~ term by reference to a proportion of the sentence w '

be undesirable m VIctoria. (paragraphs 3.6 to 3.9). as not necessary and would

E. Combined Effect of Parole and Remissions

5.9 The Committee considered that provision to ra " remissions upon the head sentence should b t ~ nt remISSIOns upon a minimum term as well as whic~ exists of an adverse public 'reaction t~r~h:I~ed. It fU~he.r considered that, desp~te'the danger combmed effect of parole and remissions th pparent emenc,Y extended to a pnsoner by the reduced. (paragraphs 3.10 to 3.15). ,e scale of such avaIlable remissions should not be

F'. Supervision During Parole

5.10 The Act requires that a person who is released I parole officer. The effectiveness of such supervis'o u~on Pbaro ehshall b~ under the supervision of a

I n as een t e subJect of strong criticism as a

47

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result of a shortage of personnel in the parole and probation staff of the Department. To assist in

meeting this problem, the Committee recommends- . ' (a) that the relevant legislation be amended to enable honorary p.arole off~cers'das well as

honorary probation officers, to be appointed by the Governor In cou:ct an ff ersand (b) that greater use be made by the Department of both honorary pro a IOn 0 IC

honorary parole officers. '( 1 3 16 to 3 20) paragrap 1S. .,

. l' f a meetine: of Correctional 5 11 The Committee also consIdered a proposa emanatIng rom .... . Administrators which related to a shortening of. the period ~pon parolTehwhere a Pfol~e :~thp~~~~

riod a eared to have made a satisfactory adjustment. e proposa raise 1m . long ~arole Fe . cipfI and it is undesirable to endeavour to summarise them an.d the conclusIOns qu~stI~ns to b~n7he Committee in this chapter of the Report. They are discussed and the ~::~m:ndations of the Committee are set out in paragraphs 3.21 to 3.25 of the Report.

G. Credit for Time on Parole if Parole Cancelled

5.12 The Committee ~ec?mmended that when P~:~i~iS ~:n~~l;:~~~t~~:~;~:tO~;~~ o;:~~~~:~~~~ automatically by convIctIOn, the ~arol~B~~~, e o!er ~o recommend to the Governor in Council parolee's conduct during that penod '. s .ou f h~~ sIntence in respect of that period. (paragraphs 3.26 that the prisoner be granted some remISSIOn 0

to 3.30).

H. Parole During Life Setences

5 13 In the case of a prisoner who is sentenced to imprisonment for life,.a Courtl~~~~r ~he pre~~~t '. . h ower to fix a minimum term and thus to make the pnsoner e IgI e or par .

~~~~~IOr~so~~;~a~ however be released upon parole by executive. action ~nde: sectio~ ~OO of ~he Crimes ~ct in the exercise of the Royal prerogat~ve of ~ercy. T~ere IS n~ legislatIo~ proVISIon Whl~h requires that the executive should give ~onsI~era~IOn to th~s que~IOn or d WhI~h ~egrl:~~ ~h:

rocedure to be adopted when such consIderation IS to be gIven. pro~e ure 0 . ea ~ituation has however been approved by executive decision. The CommIt~ee consIders tha: t~e present legislative and executive provision for the release of such pnsoners on paro e IS

unsatisfactory .

5 14 The Committee further considers that legislative p.rovisi~n should be made to autho~s~ the Governor in Council in appropriate cases where such a pnsoner IS released up?n parol~ to su stItute for the sentence of life imprisonment, a sen~ence of imprisonment for a determInate penod so that the

length of the parole period can be determIned.

5 15 The Committee has examined in detail, in paragraphs 3.31 to 3.42 of this Re~ort, the ~actor~ 'h' h have led it to these conclusions, and in paragraphs 3.43, it has ~a e a sene~ 0

~c~mmendations, which it is unnecessary to reiterate at this stage, which are deSigned to provIde a

more sati\~factory system.

5 16 The' Committee further recommends that the procedure in re.gar~ to paro~e. upon life sentences should, for the purposes of clarity, be set out in a separate set of legIslatIve provISIons. (see paragraph

3.45).

48

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I. Guidelines for Parole

5.17 Other than the amendment to section 190 of the Act which is recommended in paragraphs 3.5 and 5.7 of this Report, the Committee does not recommend any additional legislative prescription of criteria to be applied by a Court in determining whether an offender should be eligible for parole and, if so, the length of the minimum term of imprisonment to be served by him. (paragraph 3.52(a».

5.18 The Committee does recommend that the Adult Paroie Board should draft and publish a concise and readily understandable statement of the criteria which it will apply in determining whether an eligible offender will be released upon parole, and if so, when (paragraph 3.52(b».

J. Automatic Parole on Short Sentences

5.19 At the request of the Director-General of Community Welfare Services, the Committee considered a suggestion for automatic parole for prisoners serving sentences from six months to three years in length, which suggestion was based upon a discussion in a recent Home Office review of parole in England and Wales. The Committee drew attention to important differences between the parole systems in Victoria and England which indicate that certain factors which might favour the adoption in England of a proposal for automatic parole on short sentences either do not exist or have much less force in Victoria: A proposal to substitute automatic release upon parole for any class of prisoner in place of the long standing Victorian system which is based upon an assessment, firstly by the Court and secondly by the Parole Board, of suitability for parole raises serious problems. In the opinion of the Committee, a great deal of research would need to be undertaken into the ramifications of a proposal to make such a fundamental change in the Victorian system of parole before a recommendation on the matter could be properly considered. (paragraphs 3.54 ~:o 3.59).

K. Youth Parole

5.20 The legislative provisions as to the eligibility for youth parole of young persons who have been directed to be detained in a youth training centre differ substantially from those relating to the eligibility for adult parole of prisoners sentenced to imprisonment. The differences result in a greater flexibility in determining the date of release upon parole in the case of a young offender, and such greater flexbility is an advantage in his treatment.

5.21 The procedure adopted by the Youth Parole Board in the determination of whether, and if so, when a young person should be released on youth parole is similar to that adopted by the Adult Parole Board. Any criticism which can be validly made of the latter procedure can therefore be made of the former. The Committee considers that it is only in respect of procedure that the criticisms which have been made of the parole system in general have any substantial force as applied to the system in Victoria.

5.22 The considerations which have persuaded the Committee in regard to the Adult Parole Board that it would be either impracticable or undesirable to endeavour to engraft upon a procedure, which is essentially administrative, features which would be appropriate for a hearing by a Court, apply also to decisions of the Youth Parole Board. In the latter case, the fact that the Board deals also with a much younger group of offenders who have been ordered by Children's Courts to be detained in youth training centres, and the desirability of maintaining a flexible and expeditious procedure to enable the prompt implementation of any decision reached, reinforce these considerations.

5.23 The Committee considers that the advantages of a system of supervised parole for young offenders far more than offset any danger of potential unfairness to the offender which may be involved in the present procedure. (paragraphs 4.1 to 4.12) .

49

hat the resent system of youth parole be mai~tained 5 24 The Committee therefore recommends t'l' P dance with the procedures under whIch the a~d operated by the Youth Parole Board general y 10 accor Board now operates. (paragraph 4. 14(a».

. Adult Parole Board, the Committee recom.mends th~t 5 25 As it has recommended 10 the case of the . tatement of the criteria which it WIll apply 10 tl~e Youth Parole Board dr~ft and publish a concI;;e~der will be released upon parole. (paragraph determining whether and, If so, when a young 0

4.14(b)). . h

... of oun offenders ordered to be detained 10 yout 5.26 The provision for remISSIons 10 .th~ case han ~hat 10r offenders who have been sentenced to training centres is very much m?re. lImIted t them is however logically sound, having regard to imprisonment. The provision whIch IS made f~r e does not consider that, as regards eli¥i?ility f~r the objectives of the sentence, and the Com~lltte . the basis upon which they are admlmstered IS remissions, any change in the present r~g~I~~O~~o~~~le however, the Committee co~siders that, in desirable. In regard .to the scale of r~mIsslo . ssion available to both trainees and pnsoners should the interests of consIstency, the maXImum reml be the same. (paragraphs 4.15 to 4.21).

. hat Re ulations 107 A and l07B in Part XIV A of 5 ?7 The Committee accordlOgly recommen~s t R fations be amended by substituting for the - .- h C unity Welfare ServIces egu 2) Division 11 of t e ~mm I' th word "one-third". (paragraph 4.2 . word "one-quarter" 10 each regu atlon e

hat an Ie islative amendment which is necessary to 5.28 The Committee further recomm~nds f}' s shoufd be made. (paragraph 4.23). permit the use of honorary youth p'aro e 0 Icer

day of June, 1982. For and on behalf of the Committee·F

. R. Nelson Dated this 15th

(Chairman)

50

1

I I I.

Schedule One Constitution and Proceedings

of the Committee

1. The Committee, which for ease of reference is described as the Sentencing Alternatives Committee, was established by the Government on the 21st March, 1978, to examine sentencing alternatives with a view to improvement of the criminal law.

2. The terms of reference of the Committee are:

To examine sentencing alternatives available to Courts in respect of persons not subject to the jurisdiction of Children'S Courts and to report upon and make recommendations to the Attorney-General:

1. Whether any, and if so what, changes should be made in or in relatiop to those alternatives.

2. In particular, whether:

(a) any of the existing alternatives (for example, sec. 192 Social Welfare Act 1970) should be abolished or varied;

(b) provision should be made for-

(i) an elective entry date scheme; (ii) community service orders;

(iii) a work,..fine option scheme; (iv) suspended sentences;

(v) additional means of compensating or assisting victims of crimes (Compare secs. 94, 96, 482, 483, 546 Crimes Act 1958; sec. 80 Social Welfare Act 1970; sec. 51 Magistrates' Courts Act 1971.);

(vi) other sentencing alternatives.

3. Whether there should be statutory provision:

(a) for guidelines in relation to sentencing;

(b) designed to produce consistent penalties in legislation. (Cf. Penalty classification as referred to in the Report dated 4 June, 1975, of the Commonwealth Government Working Party on Territorial Criminal Law).

4. Whether provision should be made, by legislation or otherwise, for the collection of statistical data on the effects of sentences, parole or probation.

3. The members of the Committee during the preparation of this Report were:

The Honourable F. R. Nelson, Q.c., retired Justice of the Supreme Court of Victoria. (Chairman)

Mr. David Biles, Assistant Director (Research), Australian Institute of Criminology. Mr. B. D. Bodna, Director-General of Community Welfare Services. Dame Phyllis Frost, D.B.E.,

Mr. S. W. Johnston, Department of Criminology, University of Melbourne. Assistant Commissioner E. A. Mudge, Victoria Police. Mr. J. C. Walker, Q.C., Barrister at Law. Secretary-Mr. W. U. Johnston, Research Officer to the Law Department.

51

y --- ~- - -----~~-

(During Mr. W. U. Johnston's absence overseas, Mr. Peter O'Connell acted as Secretary of the Committee and in the closing stages of the Committee's deHberations, Mr. Bodna also was overseas and his place on the Committee was filled by Dr. K. O'Flaherty, Acting Director-General of Community Welfare Services.)

4. The Committee on 4 April 1979 presented to the Victorian Attorney-General a report upon the performance of work of a community service nature by offenders as an alternative to imprisonment. The proceedings of the Committee prior to the Fesentation of that report were briefly summarised in Schedule One theI:eof.

5. By the Penalties and Sentences Act 1981 (No. 9554) which was assented to on 19 May 1981, a number of the Committee's recommendations including the establishment of a system of community service orders as a sentencing alternative in appropriate cases was adopted.

6. Following the presentation of its report in relation to community service, the Committee commenced consideration of the principal sentencing alternatives available in Victoria. While it was considering the question of imprisonment, press reports were published of the Interim Report of the Australian Law Reform Commission in which it was recommended that parole for Federal prisoners should be abolished. As provision for parole was an important part of the Victorian penal system in regard to imprisonment, the Committee decided that in view of the recommendation of the Australian Law Reform Commission, it was desirable to give priority tc its consideration of parole in Victoria, rather than to delay a report upon that matter until a comprehensive review of the principal sentencing alternatives was completed. Although the Interim Report of the Australian Law Reform Commission is dated January 1980, printed copies of the report were not available to the Committee until September 1980.

7. Since it presented its first Report, the Committee has had a further fourteen meetings.

52

Its examination of the problems of parole, particularly those of procedure, was much the better informed by the courtesy of the Honourable Mr. Justice Starke, (Chairman of the Adult Parole Board), His Honour Judge Forrest, (Chairman of the Youth Parole Board), Mr. K. Williams, (Director of Family and Adolescent Services) and Mr. R.W. Lucas, (Full time member of the Adult Parole Board). Each of these gentlemen accepted an invitation to attend a meeting of the Committee and to discuss with its members various aspects of the parole and remission systems, and the Committee expresses its appreciation for the assistance it so received.

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Schedule Two Text of LegislatlOve P 0 ° rOVlSlons

Referred to in Report

1. ~~r the purpose of outlining and comme . .

~f.~~r~~~:~~!~ :~:f~~:U~1 ~~:tet ?~t tlhe .ef~~~~~~~~ l:~~l:t~~~. i~ ~sr~~or~ of this na~ure, are suggested If th 0 e eglslatlOn should be cited . we.ver sometimes attempt to in~orpor:t~e~t i~~oany particular piece of legislatio~ ~~P;;~~l;y I~ amendments ~nd irritating detail. This diff thl~ b?dy of a. report often results in cum;d IS lengthy,. an

~~n~e~ti~~~estot~~l~egchtO~t th:c~e:o~t~O~~t~~e:p;::r~y t~t:~neg 0Cut the. tee:t~~~g1~~:il~~ I . 1 . III a Schedule th I Ommittee to be egis atlve provisions to wh· h -£ • e re evant portions of th . more <Ire not relevant to th IC re erence IS made. Subsections or e more I.mportant various provisions cite~ Repofrt are not transcribed. Unless o~~rts ~f a ~ec~lOn which

are rom the Community W V ~rwise Ill~hcated the e lare SerVIces Act 1970.

2. Adult Parole

178. (1) There shall be an Ad I u t Parole Board constituted as . .

(2) The Adult Parol proVided III this section. e Board shall consist of-

(a) a judge of the Supreme Court no . (b) ~:e t~. Supreme COurt either g::::I~~ ~~t~~is conse~t. by the Chief Justice

Irector-General of So . J W r a speCIfIed term· (c) a full-time member . CIa eltare; , (d) tw th appOInted by the Go .

boo er persons appointed by th G ver~or In Council; and

e a woman. e overnor In Council one of h w om shall

(3) to (6) - not transcribed.

190. (1) Whe.re any person is convicted b ~~I~trates' C:0urt of any offen!e t~d S::teme Court or. the County Court or a

less t~~~~~d ;!a~~t~~~Sn~tf tw~years the C~~~~~h~~l,b:n~~f~~~~ed t~en, if th.e sentence, fix a lesser ess ~ an twelve months the cour erm Imposed IS six months less than t~erm (hereInafter called 'the minimum tt ma7)' as p~rt of the be eligible to be releaseed t~rm of tlhe sentence during which th~r~ t~at IS at least to fix am· . n paro e : Provided that th en er shall not

~~~;~~;~~~~~~::~~:~t=f~;"J,~~ge~~e~~~~~~~~~!d~~~r:hs!af:~~o;a~~::~~i~~~ , IXmg 0 a mmimum term

(2) Where a perllon is bet: one offenc th ore a court to be sentenced u . .

~mbrisoned ~n re~p~~~~f e~~~w~~~~:~~~ng th~t -it s;~~~~~:I~~~n~k~~~~r~~h~n o . e sentenced, shaH not fix a .. ences .or which he is convicted . e

which he is sentenced to be i m~lllmum term III respect of each of th ~~d IS then the aggregate e· d . mpnsoned but shall fix a .. e 0 ences for the sentences Pthr~~ i~ Imprdisonment the offender wiI~~I~~T tterm in respect of

pose . e 0 serve under all

53

195. (1) The Adult Parole Board may in its discretion by order in writing (hereafter in this

Division called a 'parole order') direct that a prisoner undergoing a sentence of imprisonment in respect of which a minimum term was fixed be released from prison on parole at the time specified in the order (not being before the expiration of the minimum term) and he shall be released accordingly.

(2) Before a prisoner is released under a parole order the Adult Parole Board may in its discretion revoke or vary the parole order and any order so varied shall apply

(3)

accordingly.

Any person so released shall during the period from his release until the expiration of his term of imprisonment (hereafter in this Division called the 'parole period') be under the supervision of a parole officer and shall comply with such requirements as are specified in the parole order in accordance with the

regulations.

NOTE: Sections 175 and 177, which it is not considered necessary to transcribe, provide for cases where a young person who has been sentenced to detention in a youth training centre is required to serve the detention as imprisonment in a prison. In such cases the offender becomes subject to the jurisdiction of the Adult Parole Board, as if the period of detention served had been a minimum term fixed

under the provisions of Section 190.

196. If the parole period elapses without the making by the Adult Parole Board of an order cancelling the prisoner's parole or the commission by the prisoner, whether in Victoria or elsewhere, of any offence for which he is sentenced to imprisonment for more than three months (whether during or after the parole period) the prisoner shall be regarded as having served his term of imprisonment and shall ipso facto be wholly discharged therefrom; but until the parole period so elapses or until he is otherwise discharged from his sentence of imprisonment, a person released on parole shall be regarded as being still under sentence and as not having suffered the punishment to

which he was sentenced.

197.

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(1) (a) Where a prisoner is released on parole as aforesaid the Adult Parole Board may in its discretion at any time before the expiration of the parole period vary the parole order or by order cancel his parole.

(b) and (c) not transcribed.

(2) Where the prisoner is sentenced to another term of imprisonment for more than three months in respect of any offence committed during the parole period, whether in Victoria or elsewhere, his parole shall ipso facto be cancelled notwithstanding that the parole period may already have elapsed.

(3) (a) Where a prisoner is convicted for an offence committed during the parole period and the prisoner is a young person any sentence of detention in a youth training centre that is imposed upon him shall be deemed to be a sentence of imprisonment for the like term in respect of which he may at any time be released on parole under this Part by the Adult Parole Board.

(b) The provisions of sub-section (2) shall apply to sentences referred to in

paragraph (a).

(4) - not transcribed.

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(5) Where a prisoner's parole is so cancelled . . other authority for his imprisonment shall the. o~gI?al warrant of commitment or between his release on parole and h' agaIn e In force and no part of the time

PortI'o f h" IS recommencing to h . n 0 IS term of Imprisonment shall b d . serve t e unexpIred

that term. e regar ed as tIme served in respect of

198. (1) Th~ Adult Parole Board may again release . that h~s parole has been cancelled on an ~ pnsone~ on paw Ie. l10twithstandin fOfe~omg provisions of this Division in f y pnoff occasIon Of occasions under th~ Pro~Ided that where he has been sentence~sf~~tn 0

the same t~rm ?f imprisonment: n~t .In any case be so released until he has S °dh~ ter~ .of Impnsonment he shall mInImUm term is fixed, the term thereoF. erve t e mlflllnum term or. where no

3. Remissions

2m: The Governor in C . ... ouncII may make regulations for or with respect to-

(1) ~he .mItIgatIOn or remission conditional . Impnsonment or of imprisonment or detent" or .. 0therWIse of any sentence of of detention in a youth training ce t ;on WIth ~ard labour or of any sentence p~n~shable on summary conviction (i~c~~d·or any Indictabl~ offence or offence mInImUm term is fixed and the .. mg any sentence In respect of which a

. h f mInImUm term thereof) as' . eit eror good conduct or for special industr . an InCentIve to or reward lab0l.

lr allotted to an offender whilst h . ~ In t.he performance of any work or

sentence and may mitigate or re 't the IS Impnsone~ or detained under such mI e term of pUnIshment accordingly;

Community Welfare Services Regulations:

Division Ill, Part X11/.

Regulation 97 A: For the purpose of assessin r .. shall be given to a prisoner's good conducf i~~IssIon on a ~~ntence or sentences regard treatment programme and his perfo ' ustry .an~ dIlIgence, his response to the

rmance and applIcatIon.

Regulation 97D(1): In respect of any sentenc .. se!ltences in respect of which a minimum term ~s ~.r s~ntences In~l~dmg any sentence or DIrector-General may grant remission not e d~xe and the mInImUm term thereof the month of the sentence actually' served with xcee mg 15 ~ay.s for each complete calendar month provided that when the total sentence~r~;ata remISSIOn for portion of a calendar may grant remission not exceeding one-thl' dIS freh

e months or less the Director-General rot e sentence.

(2) Where a minimum term is fixed in res ect . . se~tence during the period of the ser~ce ~l ~ sent.e~ce the remISSIon granted on the ~e.mg remission on the minimum term for the t e m.~nImum te~m shall be regarded as It IS expected the person will become el" 'bl Pfurpose of assessIng the date upon which

...... Igl e or release on parole .......... . . .......... .

Division 11, Part XIVA.

Regulation l07A: In respect of any sentence centre considered to be inappropriate for paro~~ ~ent~n~s of. detention in a youth training good progress and response of a trainee to the t ~ e outn Parole Board, and subject to may grant remission not exceeding one-q t

rea mfenht programme, the Director-General uar er 0 t e total sentence.

55

Regulation l07B: In respect of any sentence of detention in a youth training centre served in lieu of a fine, and subject to good progress and response of a trainee to the treatment programme, the Director-General may grant remission not exceeding one-quarter of that sentence.

4. Youth Parole

156. (1) There shall be a Youth Parole Board constituted as hereafter in this section provided.

(2) The Youth Parole Board shall consist of-(a) a judge of the County Court nominated with his consent by the

Attorney-General either generally or for a specified term; (b) the Director-General or an officer of the Department nominated by the

Minister either generally or for a specified term; and ( c) one member appointed by the Governor in Council.

.169. (1) The Youth Parole Board may by order in writing (hereafter in this Part called a 'parole order') direct that a young person detained in a youth training centre (hereafter in this Part called a 'trainee') be released on parole at the time specified in the order and he shall be released accordingly.

(2) The Youth Parole Board may revoke amend or vary a parole order before the trainee has been released thereunder and an order so amended or varied shall apply accordingly.

(3) A trainee so released shall during the period from his release until the expiration of the period of his detention (hereafter in this Part called the 'parole period') be under the supervision of a youth parole officer and shall comply with such requirements as are specified in the parole order in accordance with the regulations.

NOTE: Sections 167 and 168, which it is not considered necessary to transcribe, provide for cases where a young person who is imprisoned in a prison is transferred to a youth training centre. In such cases the young person becomes subject to the jurisdiction of the Youth Parole Board and his sentence for all purposes becomes a sentence of detention in a youth' training centre.

Power io Order Detention in Youth Training Centre

Crimes Act 1958.

476A. Whenever imprisonment may by law be awarded for any indictable offence and the offender is a person under the age of twenty-one years at the date of his conviction, the Court may, having regard to the nature of the offence and to the age character and antecedents of the offender, in lieu of any sentence of imprisonment direct that the offender be detained in a youth training centre for a period of not more than three years:

56

Provided that where the offender has been convicted in the same proceedings of more than one such offence the Court may direct that he be detained for an aggregate period of not more than three years in respect of all such offences.

Magistrates' Courts Act 1971.

71. (1) Whenever a person under the age of 21 . . Court of an indictable offence which b thi y~rs IS convicted bef?re a M~gistrates' dealt with summarily or any offence y d s hct ~r any other Act IS authonzed to be having regard to the nature of the off un er t de ~rancy Act 1966 the Court may, of the offender, in lieu of im osin ence an to t e ~ge c~aracter and antecedents offender be detained in a outh~r . ~ a sentenc~ ~f Impnsonment direct that the Social Welfare Act 1971 for a am~ndg cefntre wlthm the meaning of Part HI. of the

perlO a not more than two ve<lrs. Children's Court Act 1973. .

26. (1) Where a child has been charged before a Ch'ld ' offence ......... or with an offence punishabl I ren ~I Court with an indictable Proved to th t' f . e summan y and the charge has been e sa IS actIOn of the court, the court may-

(a) to (e)-not transcribed.

(f) ~pon. convicting him for an offence for which '. Impnsonment may be imposed oth . h a~art from thIS sectIon a sentence of " . erWIse t an In default of payment of a fine-

(I) If he IS under the age of fr.t care of the Departmen:~ ~ern years at the date of conviction - admit him to the

(ii) if he is of or over the age of fifteen him to be detained in a youth t ~e~rs at the date of conviction - sentence exceeding two years, or if convict:;l~m: ~~re !or a specified period not two or more such offences, without a&e ~ 1 ren .s c.ou~t ~m any occasion of sentence him to a separate period of det ct:~g tie JunsdIctI0n of the Court to respect of all such offences or in res e en Ion or each such offence, order in child be detained in a youth trainin~ ct ~f a~y two or.more of them, that the 'aggregate period' which shall be specff~~r~u~r ha rl enod to be known as an

s a not exceed three years;

57

Schedule Three Analysis of Sentences in Higher Criminal Courts, Victoria, 1980

Effective Minimum Term as a Percentage of Effective Sentence Sentence

(Yrs.) <20 20<30 30<40 40<50 50<60 60<70 70<80 80<90 Total

<1 0 1<2 1 8 10 8 -46 23 1 97 2<3 2 8 7 30 22 B 82 3<4 1 2 10 5 32 21 5 1 77 4<5 4 1 18 11 16 50 5<6 2 7 19 6 8 42 6<7 3 6 18 4 2 33 7<8 3 3 4 7 17 8<9 3 3 7 1 14

9<10 3 3 6 10<11 1 3 6 10 11<12 2. 3 2 7 12<13 1 4 3 8 13<14 2 2 14<15 2 2 15<16 1 1 2 16<17 2 2 17<18 1 1 18<19 0 19<20 0 20+ 1 1 Total 2 12 32 29 148 125 79 26 453

Percentage 0.4% 2.7% 7.1% 6.4% 32.7% 27.6% 17.4% 5.7% 100%

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Schedule Four Adult Parole Board - Full Time Member

Main Duties:

To attend meetings of the Board.

To visit all prisons and departmental offices for the purpose of ensuring that prisoners who come within the jurisdiction of the Board, prison staff and other departmental staff working in the parole field are aware of the nature of the parole scheme and its operation.

To conduct hearings for prisoners who come within the scope of the scheme.

To explain and discuss Board decisions when release on parole has been deferred for a time or when parole release has been denied.

To hear representations from prisoners and to provide information and advice when prisoners enquire with a view to having their cases further considered by the Board.

To bring cases to the attention of the Board for further consideration as necessary.

To assist in ensuring field operators both in the prisons and parole areas are informed of changes that occur from time to time in Board practice and policy.

To pass on to these servicing officers information concerning Board guidelines, followed from time to time, with a view to keeping these officers better informed as to Board thinking in various situations and to provide assistance in the handling of cases and in the preparation of reports that may be from time to time required to be furnished.

To advise as required on the interpretation and application of sentences and in the applying of the variables - remission, PSD, etc. - to provide for a consistent approach in the handling of matters.

To bring to the attention of the Chairman any matter that may require a question of law to be decided.

To be available to discuss cases with both prison and parole staff.

To be available to discuss cases and to hear representations from prisoners' families and friends and their legal representatives.

To liaise with senior departmental officers on matters affecting legislation relative to the parole scheme.

To advise the Board on a regular basis of the general activities of the Full Time Member.

To provide a means of liaison between the Board and its immediate administration and the prison and parole administrati.on.

To monitor generally the functioning of the scheme to ensure an efficient, effective and consistent mode of operation.

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Mode of Operation:

All prisons are visited on a regular basis. On average country institutions are visited three to four times per year - should circumstances warrant more frequent visits are undertaken. The three sub prisons and the two main office areas at Pentridge, the Front Office and the 'D' Division Records Office, are visited in a simiI,ar manner.

Due to numbers a different approach is applied when visiting country areas; generally details and the status of all parole type cases are briefly checked. Any discrepancies that come to notice are drawn to the attention of senior prison staff. If perchance a prisoner has not been informed of his situation he will be seen and advised. Under normal circumstances prisoners whose cases have been considered by the Board will be interviewed. In those situations where release on parole has been deferred or denied, the decision, the basis for same and other related matters will be explained and discussed. Prisoners becoming eligible for release - minimum term expiring, and those having review dates - cases previously deferred released, will be interviewed and matters pertaining to the pending determination of the individual's case by the Board, discussed. In these cases emphasis is placed on the post release situation, the general conditions and requirements of paro"Ie and the individual's obligations as a parolee.

At Pentridge, due to the larger numbers, priority is given to those requesting interviews. Over a period of time however, all cases will be checked and as occurs in the country a percentage of those due for release will be interviewed etc.

The various regional offices servicing country prisons are visited on a regular basis with either the staff as a whole or individual officers being seen and matters pertaining to the operation generally brought to attention. Any changes that may occur in practice, administrative procedure etc., are highlighted. As these offices supervise parolees, matters pertaining to the post release situation are also covered.

Close contact is maintained with the staff of the Special Supervision Unit who are responsible for the preparation of reports and the eventual supervision of the more difficult cases. The officers of this Unit are seen regularly.

Other regional offices which provide the supervisory services both in the metropolitan area and the country area are also visited from time to time. Matters relating to the post release situation are emphasised on these visits.

General access to the Full Time Member is facilitated by contact with the Board's office in Melbourne. Arrangements however can and have been made in liaison with country regional staff for relatives etc., to make contact when the Member is in country areas.

F D Atkinson Government Printer Melbourne

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